Triple Play Sports Bar

National Labor Relations Board - Board Decisions

Aug 22, 2014

361 N.L.R.B. 308 (N.L.R.B. 2014)

308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Three D, LLC d/b/a Triple Play Sports Bar and Grille
and Jillian Sanzone

Three D, LLC d/b/a Triple Play Sports Bar and Grille
and Vincent Spinella. Cases 34–CA–012915 and
34–CA–012926
August 22, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND SCHIFFER
The principal issue in this case is whether the Re-
spondent violated Section 8(a)(1) of the Act by discharg-
ing two employees for their participation in a Facebook
discussion involving claims that employees unexpectedly
owed additional State income taxes because of the Re-
spondent’s withholding mistakes.1 We agree with the
judge that the discharges were unlawful. We also adopt
the judge’s findings that the Respondent violated the Act
by threatening employees with discharge for and interro-
gating employees about their Facebook activity, as well
as by informing employees they were being discharged
because of their Facebook activity.2 In addition, we
1 On January 3, 2012, Administrative Law Judge Lauren Esposito is-
sued the attached decision. The General Counsel and the Respondent
each filed exceptions, a supporting brief, and an answering brief to the
other party’s exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the
exceptions and briefs and has decided to affirm the judge’s rulings,
findings, and conclusions only to the extent consistent with this Deci-
sion and Order. We have amended the judge’s conclusions of law
consistent with our findings herein. We have amended the remedy and
modified the judge’s recommended Order consistent with our legal
conclusions herein, and we shall substitute a new notice to conform to
the Order as modified and in accordance with our decision in Durham
School Services, 360 NLRB 694 (2014). In addition to the remedies
recommended by the judge, we shall order the Respondent to compen-
sate Charging Parties Jillian Sanzone and Vincent Spinella for the
adverse tax consequences, if any, of receiving lump-sum backpay
awards, and to file a report with the Social Security Administration
allocating the backpay awards to the appropriate calendar quarters for
each employee. We shall also modify the judge’s recommended Order
in accordance with our decision in Guardsmark, LLC, 344 NLRB 809,
812 (2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007).
The Respondent has implicitly excepted to some of the judge’s cred-
ibility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. 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 judge’s findings.
2 We agree with the judge that the Respondent separately violated
Sec. 8(a)(1) of the Act by telling Sanzone and Spinella that their Face-
book activity was the reason for their discharges. In doing so, we rely
on Benesight, Inc., 337 NLRB 282, 283–284 (2001) (finding statement
to employee linking her unlawful discharge to her protected activity
independently violated Sec. 8(a)(1) separate and apart from the dis-
adopt the judge’s finding that the Respondent unlawfully
threatened legal action for engaging in that activity.3
Finally, we reverse the judge and find that the Respond-
ent violated Section 8(a)(1) by maintaining its “Inter-
net/Blogging” policy. We address in detail the discharg-
es, then the policy.
I.
Section 7 of the National Labor Relations Act pro-
vides, in pertinent part, that “[e]mployees shall have the
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection . . . .” Under Section 7,
employees have a statutory right to act together “to im-
prove terms and conditions of employment or otherwise
improve their lot as employees”4—including by using
social media to communicate with each other and with
the public for that purpose. At the same time, online
employee communications can implicate legitimate em-
ployer interests, including the “right of employers to
maintain discipline in their establishments.”5 However,
neither of these rights is “unlimited in the sense that [it]
can be exercised without regard to any duty which the
existence of rights in others may place upon employer or
employee.”6 In this case, there is no dispute that the Fa-
cebook communications at issue constituted “concerted
charge itself). We do not rely on the cases cited by the judge—Extreme
Building Services Corp., 349 NLRB 914, 914 fn. 3 (2007); Watts Elec-
tric Corp., 323 NLRB 734, 735 (1997), revd. in part, vacated in part
mem. 166 F.3d 351 (11th Cir. 1998)—which involved employers un-
lawfully telling employees that another employee had been discharged
for engaging in protected activities.
3 In adopting the judge’s finding that the Respondent unlawfully
threatened legal action, we rely on the Respondent’s postdischarge
statement to Spinella that he would “be hearing from [the Respond-
ent’s] lawyers.” The threat directed at Spinella was not incidental to a
lawsuit: the Respondent’s counsel did not contact Spinella and the
Respondent took no legal action against him. Accordingly, by its
threat, the Respondent violated Sec. 8(a)(1) of the Act, regardless of
whether a lawsuit against Spinella would have been unlawful had one
been filed. See DHL Express, Inc., 355 NLRB 680, 680 fn. 3 (2010).
The judge erred in stating that the Board has “explicitly declined to
apply” the principles of BE & K Construction Co., 351 NLRB 451
(2007), to threats to initiate litigation “where they are ‘incidental’ to the
actual filing of the lawsuit itself.” That issue remains undecided. See
DHL Express, Inc., supra at 680 fn. 3; Postal Service, 350 NLRB 125,
126 fn. 5 (2007), enfd. 526 F.3d 729 (11th Cir. 2008). We need not
resolve it here. We find it unnecessary to pass on the judge’s finding
that the Respondent also violated Sec. 8(a)(1) by threatening Sanzone
with legal action because finding that additional violation would be
cumulative and would not affect the remedy.
4 Valley Hospital Medical Center, 351 NLRB 1250, 1252 (2007),
enfd. 358 Fed.Appx. 783 (9th Cir. 2009).
5 Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945).
6 Ibid.
361 NLRB No. 31

TRIPLE PLAY SPORTS BAR & GRILL 309
activities” and that they were “for the purpose of . . . mu-
tual aid or protection.” Rather, mindful of the balance to
be struck between employee rights under Section 7 and
legitimate employer interests, our focus here is on
whether these Facebook activities, which indisputably
prompted the Respondent to discharge the two employ-
ees, lost the protection of the Act. While our analysis
differs somewhat from that of the judge, we agree that
they did not.
A.
The Respondent, which is owned by Ralph DelBuono
and Thomas Daddona, operates a bar and restaurant;
DelBuono is responsible for the Respondent’s account-
ing. The Respondent’s employees are not represented by
a labor organization.
The Respondent employed Jillian Sanzone as a wait-
ress and bartender, and Vincent Spinella as a cook. In
approximately January 2011,7 Sanzone and at least one
other employee discovered that they owed more in State
income taxes than they had expected. Sanzone discussed
this at work with other employees, and some employees
complained to the Respondent. In response to the com-
plaints, the Respondent planned a staff meeting for Feb-
ruary with its payroll provider to discuss the employees’
concerns.
Sanzone, Spinella, and former employee Jamie
LaFrance, who left the Respondent’s employ in Novem-
ber 2010, have Facebook accounts. On January 31,
LaFrance posted the following “status update” to her
Facebook page:

Maybe someone should do the owners of Triple Play a
favor and buy it from them. They can’t even do the tax
paperwork correctly!!! Now I OWE money . . . Wtf!!!!

The following comments were posted to LaFrance’s page in
response:8

KEN DESANTIS (a Facebook “friend” of
LaFrance’s and a customer): “You owe them mon-
ey...that’s fucked up.”
DANIELLE MARIE PARENT (Triple Play employ-
ee): “I FUCKING OWE MONEY TOO!”
LAFRANCE: “The state. Not Triple Play. I
would never give that place a penny of my money.
Ralph [DelBuono] fucked up the paperwork…as per
usual.”
DESANTIS: “yeah I really dont go to that place
anymore.”
7 All dates are in 2011, unless otherwise noted.
8 We quote the comments verbatim without the corrections the
judge made in her decision.
LAFRANCE: “It’s all Ralph’s fault. He didn’t do
the paperwork right. I’m calling the labor board to
look into it bc he still owes me about 2000 in
paychecks.”
(At this juncture, employee Spinella selected the
“Like” option under LaFrance’s initial status update.
The discussion continued as follows.)
LAFRANCE: “We shouldn’t have to pay it. It’s
every employee there that its happening to.”
DESANTIS: “you better get that money…thats
bullshit if thats the case im sure he did it to other
people too.”
PARENT: “Let me know what the board says be-
cause I owe $323 and ive never owed.”
LAFRANCE: “I’m already getting my 2000 after
writing to the labor board and them investigating but
now I find out he fucked up my taxes and I owe the
state a bunch. Grrr.”
PARENT: “I mentioned it to him and he said that
we should want to owe.”
LAFRANCE: “Hahahaha he’s such a shady little
man. He prolly pocketed it all from all our
paychecks. I’ve never owed a penny in my life till I
worked for him. Thank goodness I got outta there.”
SANZONE: “I owe too. Such an asshole.”
PARENT: “yeah me neither, i told him we will be
discussing it at the meeting.”
SARAH BAUMBACH (Triple Play employee): “I
have never had to owe money at any jobs…i hope i
wont have to at TP…probably will have to seeing as
everyone else does!”
LAFRANCE: “Well discuss good bc I won’t be
there to hear it. And let me know what his excuse
is ;).”
JONATHAN FEELEY (a Facebook “friend” of
LaFrance’s and customer): “And ther way to expen-
sive.”

Sanzone added her comment from her cell phone on
February 1. She testified that her Facebook privacy set-
tings permit only her Facebook friends to view her
posts.9 LaFrance’s privacy settings are not in the record.
Co-owner Daddona learned about the Facebook dis-
cussion from his sister, who, in addition to being em-
ployed by the Respondent, is a Facebook friend of
LaFrance. On February 2, when Sanzone reported to
work, Daddona told her she was being discharged.
When Sanzone asked why, Daddona responded that she
was not loyal enough to be working for the Respondent
because of her Facebook comment.
9 To become Facebook “friends,” one person must send a “friend
request,” and the recipient must accept the request.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 310
When Spinella reported for work on February 3, he
was summoned to the Respondent’s office, where Dad-
dona and DelBuono were waiting; the Facebook com-
ments from LaFrance’s account were displayed on a
computer screen in the office. After asking Spinella if he
“had a problem with them, or the company,” DelBuono
and Daddona interrogated him about the Facebook dis-
cussion, the meaning of his “Like” selection, the identity
of the other people who had participated in the conversa-
tion, and whether Spinella had written anything negative
about DelBuono or Daddona. DelBuono told Daddona
that the “Like” option meant that Spinella stood behind
the other commenters. He told Spinella that, because he
“liked the disparaging and defamatory comments,” it was
“apparent” that Spinella wanted to work somewhere else.
DelBuono also said that his attorney had informed him
that he should discharge anyone involved in the Face-
book conversation for defamation. DelBuono then dis-
charged Spinella. As Spinella was leaving, DelBuono
said, “You’ll be hearing from our lawyers.” The Re-
spondent’s counsel did not contact Spinella, and the Re-
spondent did not take any legal action against him.
Counsel did contact Sanzone by letter, raising the possi-
bility of an action for defamation. Counsel also contact-
ed LaFrance, who thereafter deleted the entire conversa-
tion and posted a retraction.
B.
The judge found that the Facebook discussion was
concerted activity because it involved four current em-
ployees (Danielle Marie Parent, Sarah Baumbach,
Sanzone, Spinella) and was “part of an ongoing se-
quence” of discussions that began in the workplace about
the Respondent’s calculation of employees’ tax with-
holding. Noting that the employees, in their Facebook
conversation, discussed issues they intended to raise at
an upcoming staff meeting as well as possible avenues
for complaints to government entities, the judge found
that the participants were seeking to initiate, induce, or
prepare for group action. As a result, the judge conclud-
ed that the Facebook discussion was concerted under the
standard set forth in Meyers Industries, 281 NLRB 882,
887 (1986).10
The judge further found that Sanzone and Spinella
were engaged in protected concerted activity because the
discussion concerned workplace complaints about tax
liabilities, the Respondent’s tax withholding calculations,
and LaFrance’s assertion that she was owed back wages.
The judge found that Spinella’s selection of the “Like”
button expressed his support for the others who were
10 Enfd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987),
cert. denied 487 U.S. 1205 (1988).
sharing their concerns and “constituted participation in
the discussion that was sufficiently meaningful as to rise
to the level of” protected, concerted activity. Having
found Sanzone’s and Spinella’s Facebook activities pro-
tected by the Act, the judge further found that they did
not lose the Act’s protection under the test set forth in
Atlantic Steel Co., 245 NLRB 814 (1979), or under the
standards established in NLRB v. Electrical Workers Lo-
cal 1229 (Jefferson Standard), 346 U.S. 464 (1953), and
Linn v. Plant Guards Local 114, 383 U.S. 53 (1966).
Applying NLRB v. Burnup & Sims, 379 U.S. 21 (1964),
and Wright Line, 251 NLRB 1083 (1980),11 the judge
concluded that the Respondent unlawfully discharged
Sanzone and Spinella for their protected Facebook posts.
C.
The Respondent does not dispute that the employees’
Facebook activity was concerted or that its employees
have a protected right to engage in a Facebook discus-
sion about the Respondent’s tax withholding calculations
that looks toward group action. Rather, citing Linn, Jef-
ferson Standard, and Atlantic Steel, it contends that, as a
result of their Facebook activities, Sanzone and Spinella
adopted LaFrance’s allegedly defamatory and disparag-
ing comments and lost the protection of the Act.12 The
Respondent asserts that the Facebook posts were made in
a “public” forum accessible to both employees and cus-
tomers and that, as a result, they undermined DelBuono’s
authority in the workplace and adversely affected the
Respondent’s public image. Finally, the Respondent
contends that NLRB v. Burnup & Sims, 379 U.S. at 21,
cited by the judge, is inapplicable here.
D.
We begin by finding that, as a general matter, the At-
lantic Steel framework is not well suited to address is-
sues that arise in cases like this one involving employ-
ees’ off-duty, offsite use of social media to communicate
with other employees or with third parties. As a result,
we do not follow the judge’s lead in applying Atlantic
Steel to determine whether Sanzone’s and Spinella’s Fa-
cebook comments lost the protection of the Act. Rather,
we assess their comments under Jefferson Standard and
Linn, concluding that under those decisions, the com-
ments were statutorily protected. Applying the well-
established Wright Line test, in turn, we conclude that the
discharges of Sanzone and Spinella were unlawful.
11 Enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982).
12 The Respondent further maintains that it lawfully discharged Spi-
nella for performance problems.

TRIPLE PLAY SPORTS BAR & GRILL 311
1.
To determine whether an employee loses the Act’s
protection under Atlantic Steel, the Board balances four
factors: (1) the place of the discussion; (2) the subject
matter of the discussion; (3) the nature of the employee’s
outburst; and (4) whether the outburst was, in any way,
provoked by the employer’s unfair labor practices. This
multifactor framework enables the Board to balance em-
ployee rights with the employer’s interest in maintaining
order at its workplace. See Plaza Auto Center, Inc., 355
NLRB 493, 494 (2010), enfd. in part 664 F.3d 286 (9th
Cir. 2011), decision on remand 360 NLRB 972 (2014).
Typically, the Board has applied the Atlantic Steel fac-
tors to analyze whether direct communications, face-to-
face in the workplace, between an employee and a man-
ager or supervisor constituted conduct so opprobrious
that the employee lost the protection of the Act. Atlantic
Steel generally has not been applied to communications
by employees with third parties or the general public.
See, e.g., Valley Hospital Medical Center, supra, 351
NLRB at 1252, enfd. sub nom. Nevada Service Employ-
ees Local 1107 v. NLRB, 358 Fed.Appx. 783 (9th Cir.
2009); Emarco, Inc., 284 NLRB 832, 833 (1987). Ra-
ther, in those cases, the Board has applied the standards
set forth in Jefferson Standard and Linn.13
The clear inapplicability of Atlantic Steel’s “place of
the discussion” factor supports our conclusion that the
Atlantic Steel framework is tailored to workplace con-
frontations with the employer.14 We do not suggest that
employees’ off-duty, offsite use of social media can nev-
er implicate an employer’s interest in maintaining work-
place discipline and order in the same manner that a face-
to-face workplace confrontation with a manager or su-
13 We disagree with our dissenting colleague’s assertion that the
Board’s decision in Restaurant Horikawa, 260 NLRB 197, 198 (1982),
sets forth the applicable standard for deciding whether a retail employ-
ee who engages in misconduct in the presence of customers loses the
protection of the Act. See Starbucks Coffee Co., 360 NLRB 1168,
1169 fn. 10 (2014).
14 The Board has applied Atlantic Steel to confrontational verbal at-
tacks on supervisors that occurred near, but not within, the workplace.
See, e.g., Starbucks Coffee Co., 354 NLRB 876 (2009) (finding that
employee lost protection when she followed, taunted, and intimidated a
manager after a union rally outside the employer’s coffee shop), adopt-
ed in 355 NLRB 636 (2010), enf. denied in part, and remanded on other
grounds sub nom. 679 F.3d 70 (2d Cir. 2012), decision on remand
Starbucks, supra, 360 NLRB 1168. The Starbucks Board stated that the
location of an employee’s misconduct weighs against protection when
the employee engages in insubordinate or profane conduct toward a
supervisor in front of other employees, regardless of whether those
employees are on or off-duty. But there the confrontation began in
front of the employer’s store following an employer-sponsored event,
in the presence of employees under the manager’s authority. 354
NLRB at 878. The exceptional circumstances of that case confirm that
Atlantic Steel typically applies to workplace confrontations.
pervisor does. Here, however, we find that the Atlantic
Steel framework is particularly inapplicable. The em-
ployees engaged in protected concerted activity by taking
part in a social media discussion among offsite, off-duty
employees, as well as two nonemployees.15 No manager
or supervisor participated in the discussion, and there
was no direct confrontation with management.16 Alt-
hough we do not condone her conduct, we find that
Sanzone’s use of a single expletive to describe a manag-
er, in the course of a protected discussion on a social
media website, does not sufficiently implicate the Re-
spondent’s legitimate interest in maintaining discipline
and order in the workplace to warrant an analysis under
Atlantic Steel.17
2.
Having found that Atlantic Steel does not apply here,
we must next consider whether the Facebook activities of
Sanzone or Spinella lost the protection of the Act under
precedent relating to disloyal or defamatory statements.
The Board has long recognized that an employer has a
legitimate interest in preventing the disparagement of its
products or services and, relatedly, in protecting its repu-
tation (and the reputations of its agents as to matters
within the scope of their agency) from defamation. Sec-
tion 7 rights are balanced against these interests, if and
when they are implicated. In striking that balance, the
Board applies these principles in accordance with the
Supreme Court’s decisions in Jefferson Standard and
Linn.
In Jefferson Standard, the Court upheld the discharge
of employees who publicly attacked the quality of their
employer’s product and its business practices without
relating their criticisms to a labor controversy. The
15 We reject the Respondent’s contention that Sanzone’s conduct lost
the Act’s protection because her Facebook comment was visible to
customers Ken DeSantis and Jonathan Feeley. DeSantis and Feeley
joined the discussion as LaFrance’s Facebook friends on their own
initiative and in the context of a social relationship with LaFrance out-
side of the workplace, not because they were the Respondent’s custom-
ers. This off-duty discussion away from the Respondent’s premises did
not disrupt any customer’s visit to the Respondent. And, as discussed
below, the employee disloyalty perceived by the Respondent did not
deprive Sanzone of the Act’s protection.
16 In all likelihood, the revelation at their termination meetings that
the Respondent had seen the Facebook comments came as a complete,
and unwelcome, surprise to both Spinella and Sanzone.
17 Indeed, an employee does not necessarily lose the protection of the
Act by impulsively directing profanity at supervisors in the course of
otherwise-protected activity. Compare Great Dane Trailers, 293
NLRB 384, 384, 393 (1989) (employee did not lose protection for
calling his foreman a “fucked up foreman” on the shop floor after em-
ployee’s requests for assistance were denied), with DaimlerChrysler
Corp., 344 NLRB 1324, 1329 (2005) (no protection for sustained,
profane, ad hominem attack on supervisor in work area during work-
time).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 312
Court found that the employees’ conduct amounted to
disloyal disparagement of their employer and, as a result,
fell outside the Act’s protection. 346 U.S. at 475–477.
In Linn, the Court limited the availability of State-law
remedies for defamation in the course of a union organiz-
ing campaign “to those instances in which the complain-
ant can show that the defamatory statements were circu-
lated with malice and caused him damage.” 383 U.S. at
64–65. The Court indicated that the meaning of “mal-
ice,” for these purposes, was that the statement was ut-
tered “with knowledge of its falsity, or with reckless dis-
regard of whether it was true or false.” Id. at 61.
Applying these precedents, the Board has held that
“‘employee communications to third parties in an effort
to obtain their support are protected where the communi-
cation indicated it is related to an ongoing dispute be-
tween the employees and the employers and the commu-
nication is not so disloyal, reckless, or maliciously untrue
as to lose the Act’s protection.’” MasTec Advanced
Technologies, 357 NLRB 103, 107 (2011) (quoting
Mountain Shadows Golf Resort, 330 NLRB 1238, 1240
(2000)).
Turning to the facts of this case, we first adopt the
judge’s finding that the only employee conduct to be
analyzed is Sanzone’s comment (“I owe too. Such an
asshole.”) and Spinella’s indication that he “liked”
LaFrance’s initial status update (“Maybe someone should
do the owners of Triple Play a favor and buy it from
them. They can’t even do the tax paperwork correctly!!!
Now I OWE money . . . Wtf!!!!”). In agreement with the
judge, we find that in the context of the ongoing dialogue
among employees about tax withholding, Sanzone’s
comment effectively endorsed LaFrance’s complaint that
she owed money on her taxes due to a tax-withholding
error on the Respondent’s part. While Spinella’s “like”
is more ambiguous, we treat it for purposes of our analy-
sis as expressing agreement with LaFrance’s original
complaint.18
We reject the Respondent’s contention that Sanzone or
Spinella can be held responsible for any of the other
comments posted in this exchange. Neither Sanzone nor
Spinella accused the Respondent of pocketing employ-
18 The judge found that Spinella’s “Like” referred to the “entire topic
as it existed at the time”—i.e., up to and including LaFrance’s com-
ment: “It’s all Ralph’s fault. He didn’t do the paperwork right. I’m
calling the labor board to look into it bc he still owes me about 2000 in
paychecks.” We disagree with the judge’s interpretation of what it
means for an individual to “Like” an individual’s status update. We
interpret Spinella’s “Like” solely as an expression of approval of the
initial status update. Had Spinella wished to express approval of any of
the additional comments emanating from the initial status update, he
could have “liked” them individually.
ees’ money or endorsed any comment by LaFrance to
that effect. Assuming, arguendo, that such an accusation
would have been unprotected, neither Sanzone nor Spi-
nella would have lost the protection of the Act merely by
participating in an otherwise protected discussion in
which other persons made unprotected statements. See
Jefferson Standard, 94 NLRB 1507, 1513 fn. 21 (1951),
affd. sub nom. NLRB v. Electrical Workers Local 1229
(Jefferson Standard), 346 U.S. 464 (1953); see also
Crowne Plaza LaGuardia, 357 NLRB 1097, 1100 fn. 11
(2011).
The comments at issue here are qualitatively different
from the disparaging communications that lost protection
in the Jefferson Standard case. First, the Facebook dis-
cussion here clearly disclosed the existence of an ongo-
ing labor dispute concerning the Respondent’s tax-
withholding practices. Second, the evidence does not
establish that the discussion in general, or Sanzone’s and
Spinella’s participation in particular, was directed to the
general public. The comments at issue were posted on
an individual’s personal page rather than, for example, a
company page providing information about its products
or services. Although the record does not establish the
privacy settings of LaFrance’s page, or of individuals
other than Sanzone who commented in the discussion at
issue, we find that such discussions are clearly more
comparable to a conversation that could potentially be
overheard by a patron or other third party than the com-
munications at issue in Jefferson Standard, which were
clearly directed at the public.
In any event, we find that Spinella’s and Sanzone’s
comments were not “so disloyal . . . as to lose the Act’s
protection” under Jefferson Standard and its progeny.
MasTec, supra at 107. The comments at issue did not
even mention the Respondent’s products or services,
much less disparage them. Where, as here, the purpose
of employee communications is to seek and provide mu-
tual support looking toward group action to encourage
the employer to address problems in terms or conditions
of employment, not to disparage its product or services
or undermine its reputation, the communications are pro-
tected. See Valley Hospital, 351 NLRB at 1252 fn. 7,
and cases cited therein.
The comments at issue likewise were not defamatory.
Under the standard set forth in Linn and its progeny, the
Respondent has the burden to establish that the com-
ments were maliciously untrue, i.e., were made with
knowledge of their falsity or with reckless disregard for
their truth or falsity. E.g., Springfield Library & Muse-
um, 238 NLRB 1673, 1673 (1979). The Respondent has
failed to meet this burden; there is no basis for finding
that the employees’ claims that their withholding was

TRIPLE PLAY SPORTS BAR & GRILL 313
insufficient to cover their tax liability, or that this short-
fall was due to an error on the Respondent’s part, were
maliciously untrue.19 And Sanzone’s characterization of
DelBuono as an “asshole” in connection with the assert-
ed tax-withholding errors cannot reasonably be read as a
statement of fact; rather, Sanzone was merely (profanely)
voicing a negative personal opinion of DelBuono. Ac-
cordingly, we find that these statements also did not lose
protection under Linn. See El San Juan Hotel, 289
NLRB 1453, 1455 (1988) (leaflet’s “references to the
trustee as a ‘Dictator’ and as ‘Robin Hood’ [were] obvi-
ous rhetorical hyperbole”); NLRB v. Container Corp. of
America, 649 F.2d 1213, 1214, 1215–1216 (6th Cir.
1981) (newsletter criticizing company’s grievance pro-
cess and calling the general manager a “slave driver” was
protected rhetoric), enfg. in relevant part 244 NLRB 318
(1979).
3.
Having found that the Facebook activity at issue con-
stituted protected concerted activity, and that conduct did
not lose the protection of the Act, we must now decide
whether the Respondent violated the Act by discharging
Sanzone and Spinella. For the reasons set forth in the
judge’s decision, we adopt the judge’s finding that the
discharges of Sanzone and Spinella violated Section
8(a)(1) under Wright Line, 251 NLRB at 1083.20
II.
The judge dismissed the allegation that the Respond-
ent’s maintenance of its Internet/Blogging policy violat-
19 As noted above, Sanzone admitted at the hearing that she had no
reason to believe that her withholding had been improperly calculated.
But this admission does not establish that her statement, “I owe too,”
was untrue, let alone maliciously so. Sanzone and Spinella may have
tacitly endorsed LaFrance’s claim that the Respondent had erred in its
tax withholding, but they did not repeat it. In any case, as the Board
has noted, the fact that a statement may ultimately prove inaccurate
does not in itself remove the statement from the protections of the Act
when it is relayed by others. See Valley Hospital, 351 NLRB at 1253.
20 We agree with the Respondent that the Burnup & Sims framework
is not applicable here. Purporting to apply Burnup & Sims, the judge
found that the discharges violated Sec. 8(a)(1), notwithstanding that the
Respondent may have mistakenly believed, in good faith, that
Sanzone’s and Spinella’s Facebook posts were unprotected. But
Burnup & Sims applies in cases involving mistakes of fact, not mistakes
of law. Under Burnup & Sims, an employer violates Sec. 8(a)(1) by
disciplining or discharging an employee based on a good-faith belief
that the employee engaged in misconduct during otherwise protected
activity, if the General Counsel shows that the employee was not, in
fact, guilty of that misconduct. “Otherwise,” the Supreme Court ex-
plained, “the protected activity would lose some of its immunity, since
the example of employees who are discharged on false charges would
or might have a deterrent effect on other employees.” 379 U.S. at 23.
Plainly, this is not a “mistake of fact” case, and Burnup & Sims does
not apply.
ed the Act.21 Because we find that employees would
reasonably construe the policy to prohibit the type of
protected Facebook posts that led to the unlawful dis-
charges, we reverse.
The Respondent maintains the following work rule as
part of its Internet/Blogging policy in its employee hand-
book:

The Company supports the free exchange of infor-
mation and supports camaraderie among its employees.
However, when internet blogging, chat room discus-
sions, e-mail, text messages, or other forms of commu-
nication extend to employees revealing confidential
and proprietary information about the Company, or en-
gaging in inappropriate discussions about the company,
management, and/or co-workers, the employee may be
violating the law and is subject to disciplinary action,
up to and including termination of employment. Please
keep in mind that if you communicate regarding any
aspect of the Company, you must include a disclaimer
that the views you share are yours, and not necessarily
the views of the Company. In the event state or federal
law precludes this policy, then it is of no force or effect.

A rule violates Section 8(a)(1) if it would reasonably
tend to chill employees in the exercise of their Section 7
rights.22 If the rule explicitly restricts activities protected
by Section 7, it is unlawful.23 If it does not, “the viola-
tion is dependent upon a showing of one of the follow-
ing: (1) employees would reasonably construe the lan-
guage to prohibit Section 7 activity; (2) the rule was
promulgated in response to union activity; or (3) the rule
has been applied to restrict the exercise of Section 7
rights.” Lutheran Heritage Village, 343 NLRB at 647.
In analyzing work rules, the Board “must refrain from
reading particular phrases in isolation, and . . . must not
presume improper interference with employee rights.”
Id. at 646.
No party disputes the judge’s finding that the Inter-
net/Blogging policy does not explicitly restrict protected
activity and was neither promulgated in response to, nor
applied to restrict, protected activity. Accordingly, the
inquiry here is whether the first prong of the Lutheran
Heritage test is met. The judge found that the first prong
was not met; in her view, employees would reasonably
construe the Internet/Blogging policy’s prohibition of
“inappropriate discussions about the company, manage-
21 The General Counsel does not contend that the Respondent ex-
pressly relied on this policy in discharging Sanzone or Spinella or in
undertaking any disciplinary action.
22 Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d
52 (D.C. Cir. 1999).
23 Lutheran Heritage Village-Livonia, 343 NLRB 646, 646 (2004).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 314
ment, and/or coworkers” on social media as going no
further than similar rules found lawful by the Board. On
exceptions, the General Counsel contends that the prohi-
bition on “inappropriate discussions” is overly broad and
not comparable to restrictions on inappropriate conduct
that the Board has found lawful, and that employees
would interpret the rule in light of the unlawful discharg-
es.
We find merit in the General Counsel’s exception. An
employer rule is unlawfully overbroad when employees
would reasonably interpret it to encompass protected
activities.24 Here, we believe that employees would rea-
sonably interpret the Respondent’s rule as proscribing
any discussions about their terms and conditions of em-
ployment deemed “inappropriate” by the Respondent.
The rule contains only one other prohibition—against
revealing confidential information—and provides no
illustrative examples to employees of what the Respond-
ent considers to be inappropriate. Under these circum-
stances, we find the term “inappropriate” to be “suffi-
ciently imprecise” that employees would reasonably un-
derstand it to encompass “discussions and interactions
protected by Section 7.” First Transit, Inc., 360 NLRB
619, 621 (quoting 2 Sisters Food Group, 357 NLRB
1816, 1817 (2011)).25
24 See, e.g., First Transit, Inc., supra at 620–621 (2014) (finding rule
prohibiting “[d]iscourteous or inappropriate attitude or behavior to
passengers, other employees, or members of the public” unlawfully
overbroad); Hill & Dales General Hospital, 360 NLRB 611, 611–612
(2014) (finding unlawfully overbroad rules requiring employees to
“represent [the employer] in the community in a positive and profes-
sional manner” and prohibiting “negative comments” and “negativity”);
Lafayette Park Hotel, 326 NLRB 824, 828 (1998) (finding unlawfully
overbroad rule prohibiting “false, vicious, profane or malicious state-
ments toward or concerning [the employer] or any of its employees”).
The Board’s approach in this area has received judicial approval. See,
e.g., Cintas Corp. v. NLRB, 482 F.3d 463, 469–470 (D.C. Cir. 2007)
(approving the Board’s finding that rule requiring employees to main-
tain “confidentiality of any information concerning the company, its
business plans, its partners, new business efforts, customers, accounting
and financial matters” was unlawfully overbroad), enfg. 344 NLRB 943
(2005); Brockton Hospital v. NLRB, 294 F.3d 100, 106 (D.C. Cir. 2002)
(approving the Board’s finding that rule prohibiting discussions of
“[i]nformation concerning patients, associates, or hospital operations . .
. except strictly in connection with hospital business” was unlawfully
overbroad), enfg. 333 NLRB 1367 (2001).
25 The “patent ambiguity” in the phrase “inappropriate discussions”
distinguishes the Respondent’s rule from the conduct rules found law-
ful in Lutheran Heritage “that were more clearly directed at unprotect-
ed conduct.” 2 Sisters Food Group, supra, slip op. at 2 (distinguishing
the conduct rules found lawful in Lutheran Heritage from a rule pro-
hibiting the “inability or unwillingness to work harmoniously with
other employees” because of the “patent ambiguity” in the term “work
harmoniously”). We also find distinguishable the cases relied on by
our dissenting colleague and the judge where the Board found lawful
rules that addressed conduct rather than merely addressing statements
Furthermore, by unlawfully discharging Sanzone and
Spinella for participating in a Facebook discussion about
the Respondent and its owners, the Respondent provided
employees with an authoritative indication of the scope
of its prohibition against inappropriate discussions and
that they should construe its rule against inappropriate
discussions to include such protected activity. See The
Roomstore, 357 NLRB 1690, 1690 fn. 3 (2011) (employ-
ees would reasonably construe rule prohibiting “[a]ny
type of negative energy or attitudes” to include protected
activity given employer’s repeated warnings not to talk
negatively about the employer’s pay practices). Alt-
hough the Respondent’s Internet/Blogging policy con-
tains a general savings clause stating that the policy “is
of no force or effect” if “state or federal law precludes
[it],” the two unlawful discharges served as an indication
to employees that the clause did not shield Sanzone’s and
Spinella’s protected activity. Faced with these discharg-
es, employees therefore would reasonably construe the
Internet/Blogging policy to prohibit Section 7 activity
such as the Facebook discussion of tax withholding is-
sues involved in this case.
Contrary to our dissenting colleague, we are not “cob-
bling together” two prongs of Lutheran Heritage to find
the violation. 26 The test under the first prong of Luther-
an Heritage is whether employees would reasonably
construe the policy to prohibit their Section 7 activities.
We do not believe that we will cause employers greater
uncertainty in drafting rules by applying the first prong
of Lutheran Heritage to the facts of this case. Our con-
clusion that the Internet/Blogging policy is unlawful is in
accord with the many Board decisions that have found a
rule unlawful if employees would reasonably interpret it
to prohibit protected activities. Based on the Respond-
ent’s unlawful actions, we find that they would.27 Ac-
or that addressed the use of abusive, threatening, or slanderous state-
ments.
26 In Albertson’s, Inc., cited by our colleague, the Board rejected the
analysis of the judge, who found three rules—each of which was lawful
in isolation—unlawful when “informed by the context of the Respond-
ent’s actions at relevant times,” including the maintenance of other
overly restrictive rules regarding union buttons, solicitation, and distri-
bution. 351 NLRB 254, 378 (2007). The Board stated bluntly that
“[t]he judge also erred by lumping the three rules together in his analy-
sis.” Id. at 258. Moreover, the Board found that the individual rules
could not be found unlawful by “bootstrapping them to other unrelated
work rule violations” or analyzing them in the “‘broader context’ of
unrelated unfair labor practices involving other rules.” Id. at 258–259.
We have done nothing of the sort here. The one and only rule we have
considered is the Respondent’s Internet/Blogging policy.
27 We disagree with our dissenting colleague’s reading of the policy
as providing that only an “inappropriate discussion” that violates the
law would subject an employee to discipline. We find that reading
inconsistent with the plain language of the policy. The policy states
that “when . . . communication extend[s] to . . . inappropriate discus-

TRIPLE PLAY SPORTS BAR & GRILL 315
cordingly, we find that the Respondent’s maintenance of
this rule violates Section 8(a)(1) of the Act.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 8 in
the judge’s decision.
“8. The Respondent violated Section 8(a)(1) of the Act
by maintaining the Internet/Blogging policy in its em-
ployee handbook.”
ORDER
The National Labor Relations Board orders that the
Respondent, Three D, LLC d/b/a Triple Play Sports Bar
and Grille, Watertown, Connecticut, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Maintaining an Internet/Blogging policy that pro-
hibits employees from engaging in “inappropriate discus-
sions about the company, management, and/or co-
workers.”
(b) Discharging or otherwise discriminating against
employees because they engage in protected concerted
activities.
(c) Threatening employees with legal action in retalia-
tion for their protected concerted activities.
(d) Informing employees that they are being dis-
charged because they engaged in protected concerted
activities.
(e) Threatening employees with discharge in retalia-
tion for their protected concerted activities.
(f) Coercively interrogating employees about their pro-
tected concerted activities.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Revise or rescind the Internet/Blogging policy in
the employee handbook that prohibits employees from
sions . . ., the employee may be violating the law and is subject to dis-
ciplinary action, up to and including termination.” (Emphasis added.)
Thus, by the express terms of the policy, while only some “inappropri-
ate discussions” may be unlawful, all “inappropriate discussions” sub-
ject the employee to discipline, including discharge. We believe that
employees would reasonably read this language as informing them that
inappropriate discussions subject them to disciplinary action regardless
whether the discussion violates the law. Moreover, we recognize that
employees could conceivably engage in “inappropriate discussions”
that violate the law and, appropriately, result in discipline. However,
the question before us is whether the Respondent’s employees would
reasonably conclude that the Respondent would consider their protected
discussions on the Internet as “inappropriate,” and grounds for disci-
pline under the policy, because of the Respondent’s discharge of
Sanzone and Spinella for their protected activities in a Facebook dis-
cussion.
engaging in “inappropriate discussions about the compa-
ny, management, and/or co-workers.”
(b) Furnish all current employees with inserts for the
current employee handbook that (1) advise that the un-
lawful Internet/Blogging policy has been rescinded, or
(2) provide the language of a lawful policy; or publish
and distribute to all current employees a revised employ-
ee handbook that (1) does not contain the unlawful poli-
cy, or (2) provides the language of a lawful policy.
(c) Within 14 days from the date of this Order, offer
Jillian Sanzone and Vincent Spinella full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or to any other rights or privileges previously
enjoyed.
(d) Make Jillian Sanzone and Vincent Spinella 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 judge’s decision as
amended in this decision.
(e) Compensate Jillian Sanzone and Vincent Spinella
for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and file a report with the
Social Security Administration allocating the backpay
awards to the appropriate calendar quarters for each em-
ployee.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
Jillian Sanzone and Vincent Spinella, and within 3 days
thereafter, notify Sanzone and Spinella in writing that
this has been done and that the discharges will not be
used against them in any way.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facility in Watertown, Connecticut, copies of the at-
tached notice marked “Appendix.”28 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 34, after being signed by Respondent’s authorized
representative, shall be posted by the Respondent and
28 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 BOARD 316
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since August 16, 2010.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 34 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

MEMBER MISCIMARRA, dissenting in part.
I join my colleagues in finding that the Respondent un-
lawfully discharged employees Jillian Sanzone and Vin-
cent Spinella for their protected, concerted participation
in a Facebook discussion, and I agree with the analysis
the majority opinion applies in reaching those findings.1
I also agree that the Respondent violated the Act by
threatening employees with discharge, by interrogating
employees about their Facebook activity, and by threat-
ening Spinella with legal action for engaging in that ac-
tivity.2 As discussed below, however, I disagree with
1 When communications by employees with third parties or the gen-
eral public are at issue, the Board generally has applied the standards
set forth in NLRB v. Electrical Workers Local 1229 (Jefferson Stand-
ard), 346 U.S. 464 (1953), and Linn v. Plant Guards Local 114, 383
U.S. 53 (1966), and not Atlantic Steel Co., 245 NLRB 814 (1979).
When such communications take place in the presence of customers in
a retail establishment and involve conduct that seriously disrupts the
employer’s business and interferes with its ability to serve its patrons in
an atmosphere free of interruption and unwanted intrusion, the applica-
ble standard is set forth in Restaurant Horikawa, 260 NLRB 197
(1982). See also Starbucks Coffee Co., 360 NLRB 1168, 1174 (2014)
(Member Miscimarra, concurring). In addition, I believe that social-
media communications may lose the Act’s protection where, for exam-
ple, they are “‘so egregious as to take [them] outside the protection of
the Act, or of such character as to render the employee unfit for further
service.’” Neff-Perkins Co., 315 NLRB 1229, 1229 fn. 2, 1233–1234
(1994) (quoting Consumers Power Co., 282 NLRB 130, 132 (1986)).
Here, Sanzone and Spinella did not lose the Act’s protection under any
standard.
2 Unlike my colleagues, I do not find that the Respondent separately
violated Sec. 8(a)(1) of the Act by telling Sanzone and Spinella that
their protected Facebook activity was the reason they were being dis-
charged. Merely advising employees of the reason for their discharge
is “part of the res gestae of the unlawful termination, and is subsumed
their finding that the Respondent’s Internet/blogging
policy violated the Act.
The Respondent maintained a facially lawful Inter-
net/Blogging policy to prevent disclosure of its proprie-
tary or confidential information by its employees, to help
ensure that unauthorized statements by employees would
not be attributed to the Respondent, and to warn employ-
ees about “inappropriate discussions” that could be un-
lawful and subject them to discipline. The policy states
as follows:

The Company supports the free exchange of infor-
mation and supports camaraderie among its employees.
However, when internet blogging, chat room discus-
sions, e-mail, text messages, or other forms of commu-
nication extend to employees revealing confidential
and proprietary information about the Company, or en-
gaging in inappropriate discussions about the company,
management, and/or co-workers, the employee may be
violating the law and is subject to disciplinary action,
up to and including termination of employment. Please
keep in mind that if you communicate regarding any
aspect of the Company, you must include a disclaimer
that the views you share are yours, and not necessarily
the views of the Company. In the event state or federal
law precludes this policy, then it is of no force or effect.

The policy does not expressly or implicitly restrict
Section 7 activity, and it was not promulgated in re-
sponse to such activity. Neither has it been applied to
restrict protected activity: the Respondent did not apply
or in any way refer to the policy when it discharged
Sanzone and Spinella. Nor is there any language in the
policy that employees would reasonably construe to pro-
hibit Section 7 activity. The Policy is legitimately aimed
to prevent the revelation of proprietary information and
statements about the company, its management, and its
employees that may be unlawful.
The judge correctly dismissed the allegation, under the
first prong of Lutheran Heritage Village-Livonia, 343
by that violation.” Benesight, Inc., 337 NLRB 282, 285 (2001)
(Chairman Hurtgen, dissenting in part).
My colleagues find it unnecessary to pass on the judge’s finding that
the Respondent also unlawfully threatened Sanzone with legal action. I
would dismiss this allegation. The Respondent informed Sanzone that
it would commence an action for defamation against her in a letter from
its counsel requesting that she retract her allegedly defamatory state-
ments. That letter was sent to Sanzone pursuant to a provision of Con-
necticut law cited in the letter requiring such a request prior to the
institution of an action for defamation. Because the letter was proce-
durally prerequisite to filing a lawsuit, I would not find it unlawful
absent a showing by the General Counsel that a defamation lawsuit
against Sanzone would have violated Sec. 8(a)(1). See BE & K Con-
struction Co. v. NLRB, 536 U.S. 516 (2002). No such showing was
attempted here.

TRIPLE PLAY SPORTS BAR & GRILL 317
NLRB 646, 646–647 (2004), that employees would rea-
sonably construe the language warning them against “in-
appropriate discussions about the company, manage-
ment, and/or co-workers” to prohibit Section 7 activity.3
She observed that the language the General Counsel
challenged is similar to restrictions on speech or conduct
(including speech) in other work rules that the Board has
found lawful.4
For several reasons, I do not agree with my colleagues’
theory that employees would reasonably understand the
rule to encompass Section 7 activity on the basis that (i)
it uses an “imprecise” word—”inappropriate”—without
providing “illustrative examples,” and (ii) the Respond-
ent discharged Spinella and Sanzone for their protected
Facebook activity.
First, the Respondent neither cited nor applied its In-
ternet/Blogging policy in discharging Spinella or
Sanzone. It did not accuse them of revealing confidential
or proprietary information or assert that they had en-
gaged in “inappropriate conversations about the compa-
ny.” Rather, it claimed their Facebook comments were
disloyal and defamatory. Under these circumstances,
there is no factual basis for the majority to conclude that
the discharges provided employees with an “authoritative
indication” of how the Internet/Blogging policy should
be construed.
Second, this cobbling together prongs one and three of
the Lutheran Heritage Village standard is contrary to the
careful separation of those two theories of violation es-
tablished in that case. Under prong one, the inquiry is
whether the language of a rule, on its face, would reason-
3 I do not agree with the current Board standard regarding alleged
overly broad rules and policies, which is set forth as the first prong of
Lutheran Heritage (finding rules and policies unlawful, even if they do
not explicitly restrict protected activity and are not applied against or
promulgated in response to such activity, where “employees would
reasonably construe the language to prohibit Section 7 activity”). I
would reexamine this standard in an appropriate future case. I agree
with the judge, however, that the policy here is lawful under the Lu-
theran Heritage standard. In fact, for the reasons set forth in the text, I
believe the policy is phrased in general commonsense terms that pre-
clude it from reasonably being considered unlawful under any standard.
4 See, e.g., Tradesmen International, 338 NLRB 460, 462–463
(2002) (finding lawful rule prohibiting “verbal or other statements
which are slanderous or detrimental to the company or any of the com-
pany’s employees”); Ark Las Vegas Restaurant Corp., 335 NLRB 1284
fn. 2, 1291–1292 (2001) (finding lawful rules prohibiting “any con-
duct” that “reflects adversely on yourself, fellow associates, [or] the
Company,” or “conducting oneself unprofessionally or unethically,
with the potential of damaging the reputation or a department of the
Company”), enfd. in part 334 F.3d 99 (D.C. Cir. 2003); see also Com-
munity Hospitals of Central California v. NLRB, 335 F.3d 1079, 1088–
1089 (D.C. Cir. 2003) (finding lawful rule prohibiting “insubordination
. . . or other disrespectful conduct”), denying enf. in pertinent part to
335 NLRB 1318 (2001).
ably be interpreted to prohibit Section 7 activity. Under
prong three, the inquiry is whether a rule, regardless of
its wording, has been applied to restrict the exercise of
Section 7 rights. Following The Roomstore, 357 NLRB
1690 (2011)—in my view, incorrectly decided in this
regard—the majority continues down the path of this
hybrid category of violation, under which a rule that is
not unlawful on its face and has not been applied to re-
strict the exercise of Section 7 rights nevertheless is
found unlawful based on a mixture of the rule’s language
and the employer’s conduct.5 In so doing, the majority
contributes to the uncertainty employers confront in
seeking to square their rules with our Lutheran Heritage
prong-one precedent, which, at this point, consists of so
many distinctions, qualifications, and factual variations
as to preclude any reasonable “certainty beforehand” for
most parties “as to when [they] may proceed to reach
decisions without fear of later evaluations labeling [their]
conduct an unfair labor practice.”6
Third, I do not believe one can reasonably construct a
theory that it constitutes unlawful restraint, coercion, or
interference with protected concerted activities to advise
employees, as set forth in the policy, that an employee
“may be violating the law and is subject to disciplinary
action” if their internet communications “extend to em-
ployees revealing confidential and proprietary infor-
mation about the Company, or engaging in inappropriate
discussions about the company, management, and/or co-
workers” (emphasis added). Nobody can seriously disa-
gree that the two listed infractions—disclosing “confi-
dential and proprietary information” and “inappropriate
discussions”—“may” violate one or more laws “and” be
proper grounds for discipline. Although the reference to
“inappropriate” discussions is potentially susceptible to
different interpretations, there is no law against using an
understandable catchall phrase as a general statement of
policy, particularly in the circumstances presented here
(where employees are advised such discussions “may”
violate the law and make the offenders “subject to” dis-
cipline). It is also significant that the reference to possi-
5 The Board rejected a similar analysis in Albertson’s, Inc., 351
NLRB 254, 258–259 (2007). There, the judge improperly bootstrapped
the employer’s unlawful application of one rule to restrict the exercise
of Sec. 7 rights to find unlawful two other rules lawful in themselves.
My colleagues distinguish Albertson’s as involving multiple rules while
this case involves only one. However, the judge in Albertson’s went
outside the plain language of the challenged rules and applied an analy-
sis “informed by the context of the Respondent’s actions at relevant
times, including the history of improper restriction of employees’ Sec-
tion 7 rights.” Id. at 378. The Board properly rejected that approach,
and my colleagues here embrace it.
6 First National Maintenance Corp. v. NLRB, 452 U.S. 666, 679
(1981).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 318
ble legal violations and potential discipline is phrased in
the conjunctive (the two concepts are connected by
“and,” not “or”). Thus, the policy states, in effect, that
“inappropriate discussions,” if they violate the law, may
also “subject” the offending employees to discipline.7
Most people appreciate that “inappropriate” behavior
may have consequences sufficiently serious as to violate
the law and result in discipline. It does not per se violate
Federal labor law to use a general phrase to describe the
type of conduct that may do so.8 If it did, “just cause”
provisions contained in most collective-bargaining
agreements that have been entered into since the Act’s
adoption nearly 80 years ago would be invalid.9 Howev-
er, “just cause” provisions have been called “an obvious
illustration” of the fact that many provisions “must be
expressed in general and flexible terms.”10 More gener-
ally, the Supreme Court has stated, in reference to collec-
tive-bargaining agreements, that there are “a myriad of
cases which the draftsmen cannot wholly anticipate,” and
“‘[t]here are too many people, too many problems, too
many unforeseeable contingencies to make the words . . .
the exclusive source of rights and duties.’”11 The policy
at issue in the instant case makes reference to “inappro-
priate discussions” in the same manner, which precludes
7 Notwithstanding this phrasing, my colleagues believe that em-
ployees would read the policy as subjecting them to discipline for any
discussion the Respondent deems inappropriate, “regardless whether
the discussion violates the law.” In other words, in their view, the
reference in the policy to communications that violate the law has no
effect on how employees would read the policy; they would read it the
same way with or without that language. This interpretation may be
conceivable, but it is not reasonable. See Lutheran Heritage Village,
343 NLRB at 647 (rejecting an analytical approach that would “require
the Board to find a violation whenever the rule could conceivably be
read to cover Section 7 activity, even though that reading is unreasona-
ble”).
8 To the contrary, as the Board observed in Lutheran Heritage Vil-
lage, “[w]ork rules are necessarily general in nature . . . . We will not
require employers to anticipate and catalogue in their work rules every
instance in which [prohibited types of speech] might conceivably be
protected by (or exempted from the protection of) Section 7.” 343
NLRB at 648. My colleagues’ apparent requirement that employers
include “illustrative examples” of general terms to avoid violating the
Act is difficult to square with that decision.
9 “Just cause” provisions—which state that employees are subject to
discipline or discharge if there is “just cause”— have been ubiquitous
in collective-bargaining agreements throughout the Act’s history. See,
e.g., Burgie Vinegar Co., 71 NLRB 829, 840 (1946) (“It is agreed that
the right to discharge employees for just cause is a management pre-
rogative.”); Solutia, Inc., 357 NLRB 58, 61 fn. 8 (2011) (contract re-
serves to the company the right to “discipline or discharge for just
cause”), enfd. 699 F.3d 50 (1st Cir. 2012).
10 Archibald Cox, Reflections Upon Labor Arbitration, 72 Harv. L.
Rev. 1482, 1491 (1959).
11 Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574,
578–579 (1960) (quoting Cox, supra fn. 38, 72 Harv. L. Rev. at 1498–
1499).
reasonably regarding this phrase as unlawful interfer-
ence, restraint or coercion.12
Finally, the Board is finding that Sanzone’s and Spi-
nella’s discharges were unlawful, and the policy’s dis-
claimer states that the policy “is of no force or effect” if
State or Federal law precludes it. Thus, even if the dis-
charges had some bearing on interpretations of the policy
(notwithstanding the fact that the Respondent here never
invoked or relied upon the policy in relation to the dis-
charges), the policy on its face disclaims any application
in circumstances that would be unlawful. Although a
general disclaimer may not be sufficient to render valid
language that explicitly runs afoul of the Act’s require-
ments, such a disclaimer reinforces that the policy is
meant to be interpreted in a manner not contrary to appli-
cable law. For this reason as well, I believe the policy is
lawful, and the majority should not require the Respond-
ent to rescind or revise it.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain an Internet/Blogging policy
that prohibits employees from engaging in “inappropriate
12 Although my colleagues cite D.C. Circuit decisions in which the
court approved the Board’s analysis in cases involving overly broad
confidentiality rules, those cases are distinguishable from the instant
case, and that court has criticized Board decisions finding rules unlaw-
ful because, like here, they employed general language to prohibit
serious misconduct. See Adtranz ABB Daimler-Benz Transportation,
N.A., Inc. v. NLRB, 253 F.3d 19, 28 (D.C. Cir. 1991) (admonishing
Board to not “pars[e] workplace rules too closely in a search for ambi-
guity that could limit protected activity”); Community Hospitals of
Central California v. NLRB, supra at 1089 (“[T]o quote the Board itself
in a more realistic moment, ‘any arguable ambiguity’ in the rule ‘arises
only through parsing the language of the rule, viewing the phrase . . . in
isolation, and attributing to the [employer] an intent to interfere with
employee rights’” (quoting Lafayette Park Hotel, 326 NLRB 824, 825
(1998))).

TRIPLE PLAY SPORTS BAR & GRILL 319
discussions about the company, management, and/or co-
workers.”
WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in protected concerted
activities.
WE WILL NOT threaten you with legal action in retalia-
tion for your protected concerted activities.
WE WILL NOT inform you that you are being dis-
charged because you engaged in protected concerted
activities.
WE WILL NOT threaten you with discharge in retaliation
for your protected concerted activities.
WE WILL NOT coercively question you about your pro-
tected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days of the Board’s Order, revise
or rescind the Internet/Blogging policy in the employee
handbook that prohibits employees from engaging in
“inappropriate discussions about the company, manage-
ment, and/or co-workers,” and WE WILL advise employ-
ees in writing that we have done so and that the unlawful
rules will no longer be enforced.
WE WILL furnish you with inserts for the current em-
ployee handbook that (1) advise that the unlawful Inter-
net/Blogging policy has been rescinded, or (2) provide
the language of a lawful policy; or WE WILL publish and
distribute to all current employees a revised employee
handbook that (1) does not contain the unlawful policy,
or (2) provides the language of a lawful policy.
WE WILL, within 14 days from the date of the Board’s
Order, offer Jillian Sanzone and Vincent Spinella full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
WE WILL make Jillian Sanzone and Vincent Spinella
whole for any loss of earnings and other benefits result-
ing from their discharge, less any net interim earnings,
plus interest.
WE WILL compensate Jillian Sanzone and Vincent Spi-
nella for the adverse tax consequences, if any, of receiv-
ing lump-sum backpay awards, and WE WILL file a report
with the Social Security Administration allocating the
backpay awards to the appropriate calendar quarters for
each of them.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Jillian Sanzone and Vincent Spinella,
and WE WILL, within 3 days thereafter, notify each of
them in writing that this has been done and that the dis-
charges will not be used against them in any way.
THREE D, LLC D/B/A TRIPLE PLAY SPORTS BAR
AND GRILLE

The Board’s decision can be found at
www.nlrb.gov/case/34–CA–012915 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.

Claire Sellers, Esq. and Jennifer Dease, Esq., for the Acting
General Counsel.
Melissa Scozzafava, Esq. (Yamin & Grant, LLC), for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
LAUREN ESPOSITO, Administrative Law Judge. Based on a
charge filed on February 16, 2011, and amended on March 7
and April 5, 2011, by Jillian Sanzone, an individual (Sanzone),
and upon a charge filed on February 24, 2011, and amended on
April 8, 2011, by Vincent Spinella, an individual (Spinella), a
consolidated complaint and notice of hearing issued on August
17, 2011. The complaint alleges that Three D, LLC d/b/a Tri-
ple Play Sports Bar and Grille (Triple Play or Respondent)
violated Section 8(a)(1) of the National Labor Relations Act
(the Act) by discharging Sanzone and Spinella on February 2
and 3, 2011, respectively, in retaliation for their protected con-
certed activities. The consolidated complaint also alleges that
Respondent violated Section 8(a)(1) by coercively interrogating
and threatening employees, informing them that they were dis-
charged because of their protected concerted activities, threat-
ening them with legal action in retaliation for their protected
concerted activities, and maintaining an unlawful policy in its
employee handbook. Respondent filed an answer denying the
material allegations of the complaint. This case was tried before
me on October 18, 2011, in New York, New York.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel (the General Counsel) and Re-
spondent I make the following
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 320
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Connecticut limited liability corporation
with a place of business located in Watertown, Connecticut,
where it operates a sports bar and restaurant. Respondent ad-
mits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent began its operations in December 2009. At all
times material to the events at issue in this case, Ralph Del-
Buono and Thomas Daddona have owned Respondent’s busi-
ness. DelBuono and Daddona oversee the restaurant’s day-to-
day operations, including the supervision of employees. Del-
Buono is also responsible for Respondent’s accounting. Re-
spondent admits and I find that DelBuono and Daddona are
supervisors within the meaning of Section 2(11) of the Act.
Respondent also admits and I find that Lucio Dibona is an
agent of Respondent within the meaning of Section 2(13) of the
Act. Finally, Respondent admits and I find that its attorney,
Joseph P. Yamin, was Respondent’s agent within the meaning
of Section 2(13) of the Act with respect to the actions he took
on Respondent’s behalf.
B. The Employment of Jillian Sanzone and Vincent
Spinella, and their Alleged Protected
Concerted Activity
Jillian Sanzone was hired by Respondent when its operations
began in December 2009, and worked continuously until her
discharge on February 2, 2011. Sanzone worked as a waitress
on Monday evenings, and as a bartender on Wednesday eve-
nings, Thursday during the day, Friday days and evenings, and
Saturday evenings. She clocked in and out through Respond-
ent’s computer system, and received a paycheck every Friday.
During her employment, Sanzone received two raises, one 4 or
5 months after her employment began, and the second around
Thanksgiving 2010. She also received a cash Christmas bonus
in 2010.
Vincent Spinella began working for Respondent as a cook in
September 2010, and worked from Wednesday through Sun-
day, for at least 8 hours per shift. He clocked in by punching a
timecard, and received a paycheck every week. Spinella also
received a cash Christmas bonus in 2010, together with a res-
taurant gift certificate.
Sanzone and Spinella both have accounts on the website Fa-
cebook, as does Respondent. Sanzone and Spinella both testi-
fied that prior to February 1, 2011, they had written about their
employment with Respondent on their Facebook accounts.
Sanzone had suggested that others visit the restaurant during
her bartending shifts. Spinella had listed the restaurant’s spe-
cial dishes of the day, and suggested that others visit to watch
particular sporting events. Both testified that prior to February
1, 2011, they had never been told that they were not permitted
to write about Respondent on their Facebook accounts.
In January 2011,1 when Sanzone filed her tax returns for
2010, she discovered that she owed taxes to the State of Con-
necticut. Sanzone testified that the Wednesday night prior to
her discharge, waitress Amanda Faroni approached her and
asked whether she had filed her tax return for the previous year.
Sanzone said that she had done so, and that she owed about
$200 in taxes to the State. Faroni said that she was required to
pay additional taxes to the State as well. Waiter Anthony
Cavallo then approached them, and said that he was getting his
taxes done soon, and hoped that he did not owe anything. Dad-
dona testified that he was aware that employees were concerned
with this issue, and that as a result he and DelBuono had ar-
ranged for a staff meeting with Respondent’s accountant and
payroll company. This meeting was to take place a week or
two after Sanzone and Spinella were discharged.
On February 1, Sanzone read and commented on a posting
about Respondent on the Facebook account of a former em-
ployee named Jamie LaFrance. LaFrance had worked with
Sanzone at the bar, and left her employment with Respondent
in November 2010. Sanzone was “friends” with LaFrance on
Facebook, meaning that she was permitted by LaFrance to
write on the “wall” of LaFrance’s Facebook account. On Janu-
ary 31, LaFrance posted a comment on her “wall” stating,
“Maybe someone should do the owners of Triple Play a favor
and buy it from them. They can’t even do the tax paperwork
correctly!!! Now I OWE money . . . . Wtf!!!!” (Emphasis in
original). The postings on LaFrance’s Facebook “wall” contin-
ued as follows:

KEN DESANTIS (customer): You owe them money . . .
that’s f—ked up.
DANIELLE MARIE PARENT (employee): I F—KING
OWE MONEY TOO!
LAFRANCE: The state. Not Triple Play. I would never
give that place a penny of my money. Ralph f—ked up
the paperwork . . . as per usual.
DESANTIS: Yeah I really don’t go to that place any-
more.
LAFRANCE: It’s all Ralph’s fault. He didn’t do the pa-
perwork right. I’m calling the labor board to look into it
because he still owes me about 2000 in paychecks.
LAFRANCE: We shouldn’t have to pay it. It’s every
employee there that it’s happening to.
DESANTIS: You better get that money . . . that’s bull-
shit if that’s the case I’m sure he did it to other people too.
PARENT: Let me know what the board says because I
owe $323 and I’ve never owed.
LAFRANCE: I’m already getting my 2000 after writing
to the labor board and them investigating but now I find
out he f–ked up my taxes and I owe the state a bunch.
Grrr.
PARENT: I mentioned it to him and he said that we
should want to owe.
LAFRANCE: Hahahaha he’s such a shady little man. He
probably pocketed it all from all our paychecks. I’ve nev-
1 All subsequent dates are in 2011, unless otherwise indicated.

TRIPLE PLAY SPORTS BAR & GRILL 321
er owed a penny in my life till I worked for him. That
goodness I got outta there.
SANZONE: I owe too. Such an asshole.
PARENT: Yeah me neither, I told him we will be dis-
cussing it at the meeting.
SARAH BAUMBACH (employee): I have never had to
owe money at any jobs . . . I hope I won’t have to at TP
. . . probably will have to seeing as everyone else does!
LAFRANCE: Well discuss good because I won’t be
there to hear it. And let me know what his excuse is .
JONATHAN FEELEY (customer): And they’re way too
expensive.2

Spinella clicked “Like” under LaFrance’s initial comment,
and the text “Vincent VinnyCenz Spinella and Chelsea Molloy
like this” appears beneath it. Spinella testified that at the time
he clicked “Like,” the last comment on the wall was LaFrance’s
statement, “It’s all Ralph’s fault. He didn’t do the paperwork
right. I’m calling the labor board to look into it because he still
owes me about 2000 in paychecks.”
Daddona testified that he learned of the discussion on
LaFrance’s Facebook account from his sister, Jobie Daddona,
who also works at the restaurant. He and DelBuono then
logged onto Facebook,3 and DelBuono printed out a hard copy
of the comments from LaFrance’s account.
C. The Discharge of Jillian Sanzone
Sanzone testified that when she arrived for work on February
2, Daddona spoke to her as she entered the building. Daddona
told her that the Company had to make some changes, and that
they had to let her go. Sanzone treated the statement as a joke,
and Daddona reiterated that they had to fire her. Sanzone asked
why, and Daddona said that she was not loyal enough to be
working with Respondent because of her comment on Face-
book. Daddona said that he had learned about Sanzone’s Face-
book comment from customers. Sanzone protested that she
worked hard, worked holidays, and did various favors for Del-
Buono and Daddona, all of which demonstrated her loyalty to
the Company. Daddona responded that Sanzone was not loyal
because of her Facebook comment. Sanzone then asked for a
“pink slip” and her last paycheck. Daddona did not respond,
and Sanzone left.
Daddona testified that Sanzone was discharged because her
Facebook comment indicated that she was disloyal, and based
on several incidents where at the end of her shift her cash regis-
ter held more money than could be accounted for by totaling
individual receipts.
D. The Discharge of Vincent Spinella
Spinella testified that when he arrived at work on February 3,
Daddona asked him to come to the office downstairs. DelBuo-
no was in the office, and the Facebook comments on
2 GC Exh. 2. Participants have been identified, and minor spelling,
grammatical, and punctuation errors corrected, in the interests of clari-
ty. Parent and Baumbach were employed by Respondent as of Febru-
ary 2011, but have since left Respondent’s employ.
3 Daddona testified that Respondent also has its own Facebook ac-
count.
LaFrance’s account were displayed on the screen of the office
computer. DelBuono asked Spinella if there was a problem
with him and Daddona, or with the Company, and Spinella
replied that he had no such problems. DelBuono said that
LaFrance’s Facebook wall indicated the opposite. DelBuono
and Daddona proceeded to ask Spinella about the various
comments, and about the significance of the “Like” option that
Spinella had chosen. DelBuono asked Spinella whether he had
written anything negative about DelBuono and Daddona, and
Spinella said that he hadn’t written anything; he had only
clicked the “Like” option. DelBuono also asked Spinella who
Chelsea Molloy was, and Spinella explained that he did not
know. DelBuono then told Daddona that the “Like” option
meant that Spinella stood behind the other commenters, and
asked Daddona whether Spinella had their best interests in
mind given that he clicked the “Like” option. Daddona re-
sponded that this demonstrated that Spinella did not have their
best interests in mind. DelBuono then said that his attorney had
informed him that he should discharge anyone involved in the
Facebook conversation for defamation. Spinella stated that the
restaurant was DelBuono and Daddona’s business, and that if
they believed that his clicking the “Like” option was grounds
for discharge, he understood that they felt they had to do so.
DelBuono told Spinella that it was time for him to go home for
good, and Spinella then left. As Spinella was leaving, DelBuo-
no told him that he would be hearing from Respondent’s attor-
neys.
Daddona testified that Spinella was discharged for poor work
performance, including excessive cell phone use, conversing
with the waitresses, and cigarette breaks, and failure to perform
his work in an expedient manner. Daddona testified that Spi-
nella’s having chosen the “Like” option on LaFrance’s Face-
book account was not a factor in the decision to discharge him,
and was not discussed during the conversation terminating his
employment. Daddona testified that when he and DelBuono
met with Spinella, they asked whether he was happy working
for them, and asked him to provide a reason why he should
remain employed, given his work performance. Daddona testi-
fied that when Spinella did not respond, he and DelBuono felt
that Spinella was not interested in continuing his employment.
DelBuono also testified regarding Spinella’s discharge meet-
ing. DelBuono said that he and Daddona decided to meet with
Spinella because Spinella’s “Facebook comment raised a red
flag,” and made it apparent that he was unhappy. During the
meeting, DelBuono told Spinella that he was obviously not
happy, and then “questioned him,” asking him, “if he liked
those defamatory and derogatory statements so much well why
is he still working for us?” DelBuono told Spinella that be-
cause he “liked the disparaging and defamatory comments,” it
was “apparent” that Spinella wanted to work somewhere else.
He asked Spinella to provide “one valid reason why you want
to continue working for us,” and Spinella made no response and
left.
Spinella testified that later on the day of his discharge he
called Daddona to inquire about his final paycheck. He left a
message for Daddona, which DelBuono returned. After they
arranged for Spinella to receive his paycheck, Spinella asked
DelBuono whether he would need any additional paperwork to

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 322
file for unemployment, and DelBuono stated that Respondent’s
attorneys would not permit him to receive unemployment bene-
fits.
E. Respondent’s Threat to Institute an Action for
Defamation Against Sanzone
On February 4, Respondent’s attorney, Joseph P. Yamin of
Yamin & Grant, LLC, wrote to Sanzone, stating as follows:

We represent Three D, LLC d/b/a Triple Play Sports
Bar and its principals, Thomas Daddona, Ralph Delbuono,
and Lucio Dibona. Pursuant to Connecticut General Stat-
ute § 52-237 (a copy is attached), this letter is a formal re-
quest for you to retract, in as public a manner as they were
made, the defamatory statements regarding Triple Play
and its principals published to the general public on Face-
book. To refresh your recollection of those statements, at-
tached are the excerpts from the Facebook website. Pro-
vide us with written confirmation that you have retracted
your defamatory statements. If such statements are not re-
tracted within thirty (30) days, we will be forced to com-
mence an action for defamation against you.

Because users of Facebook are unable to delete the com-
ments they post on another user’s account, Sanzone asked
LaFrance to delete the comment she had made on LaFrance’s
“wall” regarding owing money on her taxes. LaFrance deleted
Sanzone’s comment.4 LaFrance had been sent a letter identical
to Yamin’s letter to Sanzone, and LaFrance had posted a retrac-
tion. On February 26, Sanzone sent Yamin a letter stating that
her comment on LaFrance’s Facebook page had been erased,
and that she had filed a charge with the National Labor Rela-
tions Board. On March 1, Yamin responded that “[a] retraction
requires that you post a formal statement that the defamatory
statements were not true. Provide us with written confirmation
that you have retracted your defamatory statements.” Sanzone
did not respond, and did not post any other statement or com-
municate with Yamin again.
The evidence establishes that no lawsuit was ever filed
against Sanzone, Spinella, or LaFrance.
F. Respondent’s Internet/Blogging Policy
Respondent maintains a handbook containing employee
guidelines, which, according to Delbuono, was discussed with
Respondent’s initial employees when the restaurant began its
operations in December 2009. Delbuono testified that at em-
ployee orientation the handbook was passed around among the
employees, and that he told the employees that they could re-
quest their own copy. As discussed above, Sanzone was one of
Respondent’s initial employees.
The “Internet/Blogging Policy” contained in Respondent’s
employee guidelines states as follows:

The Company supports the free exchange of information and
supports camaraderie among its employees. However, when
internet blogging, chat room discussions, e-mail, text messag-
es, or other forms of communication extend to employees re-
4 Spinella testified that after Sanzone was discharged he rescinded
his selection of the “Like” option on LaFrance’s Facebook account.
vealing confidential and proprietary information about the
Company, or engaging in inappropriate discussions about the
company, management, and/or co-workers, the employee
may be violating the law and is subject to disciplinary action,
up to and including termination of employment. Please keep
in mind that if you communicate regarding any aspect of the
Company, you must include a disclaimer that the views you
share are yours, and not necessarily the views of the Compa-
ny. In the event state or federal law precludes this policy, then
it is of no force or effect.
III. ANALYSIS AND CONCLUSIONS
A. The Discharges of Jillian Sanzone and
Vincent Spinella
1. Summary of the Parties’ contentions
The General Counsel contends that Respondent’s decision to
discharge Sanzone and Spinella was based entirely on their
having participated in the conversation on LaFrance’s Face-
book account. The General Counsel argues as a result that the
discharges must be considered pursuant to the analysis articu-
lated by the Supreme Court in NLRB v. Burnup & Sims, 379
U.S. 21 (1964). Under Burnup & Sims, an employer violates
Section 8(a)(1) when the discharged employee was engaged in
protected activity at the time of their purported misconduct, the
employer knew of the protected activity, the basis for the dis-
charge was the employee’s alleged misconduct in the course of
their protected activity, and the employee was not actually
guilty of the misconduct. The General Counsel thus argues that
Sanzone and Spinella’s participation in the Facebook conversa-
tion was protected concerted activity, that Respondent was
aware of their participation, that Respondent discharged them
for the comments constituting alleged misconduct, and that
Sanzone and Spinella did not in fact commit misconduct caus-
ing them to lose the Act’s protection. Applying the Board’s
analysis articulated in Atlantic Steel Co., 245 NLRB 814, 816–
817 (1979), the General Counsel argues that given the location
and subject matter of the Facebook discussion, the nature of the
“outburst,” and the extent to which the outburst was provoked
by Respondent’s conduct, Sanzone and Spinella’s comments on
LaFrance’s Facebook account remained protected activity.
General Counsel also argues that Sanzone and Spinella’s com-
ments did not constitute disparaging and disloyal statements
unprotected under NLRB v. Electrical Workers Local 1229
(Jefferson Standard), 346 U.S. 464 (1953), and its progeny.
Finally, the General Counsel contends that, to the extent that
the Wright Line analysis may be applicable, it has established a
prima facie case and Respondent has failed to establish by a
preponderance of the credible evidence that it in fact discharged
Sanzone and Spinella for other, legitimate, reasons.
Respondent contends in its posthearing brief that Sanzone
was discharged for “disloyalty,” consisting of her “disparaging
attack” on DelBuono during the Facebook discussion, and re-
peated cash register inaccuracies. Respondent argues that
Sanzone’s comment on LaFrance’s Facebook account was un-
protected under Jefferson Standard. Respondent contends that
Spinella was discharged for poor work performance, and not
for any participation in the Facebook discussion. However,

TRIPLE PLAY SPORTS BAR & GRILL 323
Respondent contends that even if Spinella had been discharged
for his participation in the Facebook conversation, his having
selected the “Like” option would constitute unprotected disloy-
alty and disparagement under Jefferson Standard. Respondent
further contends that Sanzone and Spinella’s comments were
defamatory and unprotected under Linn v. Plant Guards, 383
U.S. 53 (1966), in that they were made with knowledge that
they were false or with reckless disregard for their truth or falsi-
ty. Finally, Respondent argues that Sanzone and Spinella’s
comments lost the protection of the Act under the Atlantic Steel
analysis.
The evidence here establishes that the General Counsel has
satisfied the Burnup & Sims standard, and that Sanzone and
Spinella’s participation in the Facebook discussion did not lose
its protected status under Atlantic Steel, Jefferson Standard, or
Linn. The evidence further establishes that, with respect to
Respondent’s other asserted reasons for the discharges, the
General Counsel has established a prima facie case that
Sanzone and Spinella were discharged in retaliation for their
protected concerted activity. Finally, Respondent has not met
its burden to show by a preponderance of the evidence that
Sanzone and Spinella were in fact discharged for legitimate,
nondis-criminatory reasons.
2. Sanzone and Spinella engaged in protected concerted
activity by participating in the discussion
on LaFrance’s Facebook account
The evidence establishes that Sanzone and Spinella were en-
gaged in concerted activity within the meaning of Section 7 of
the Act when they participated in the discussion on LaFrance’s
Facebook account. Section 7 of the Act provides that “employ-
ees shall have the right to self organization, to form, join, or
assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing and to engage in other con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection.” It is beyond question that is-
sues related to wages, including the tax treatment of earnings,
are directly related to the employment relationship, and may
form the basis for protected concerted activity within the mean-
ing of Section 7. See, e.g., Coram Pond Diner, 248 NLRB
1158, 1159–1160, 1162 (1980) (protected concerted activity
involving employee complaint regarding employer’s failure to
deduct taxes from pay and provide W-2 forms). While
LaFrance herself was a former employee and two customers
posted comments as well, current employees Parent and
Baumbach, as well as Sanzone and Spinella, were involved in
the discussion.
The evidence also establishes that the Facebook discussion
was part of a sequence of events, including other, face-to-face
employee conversations, all concerned with employees’ com-
plaints regarding Respondent’s tax treatment of their earnings.
It is well settled that concerted activity “encompasses those
circumstances where individual employees seek to initiate or to
induce or to prepare for group action.” Worldmark by Wynd-
ham, 356 NLRB 765, 766 (2011), quoting Meyers Industries,
281 NLRB 882, 887 (1986), enfd. sub nom. Prill v. NLRB, 835
F.2d 1481 (D.C. Cir. 1987); see also KNTV, Inc., 319 NLRB
447, 450 (1995) (“Concerted activity encompasses activity
which begins with only a speaker and listener, if that activity
appears calculated to induce, prepare for, or otherwise relate to
some kind of group action.”). The specific medium in which
the discussion takes place is irrelevant to its protected nature.
See, e.g., Timekeeping Systems, Inc., 323 NLRB 244, 247
(1997) (email regarding vacation policy sent by employees to
fellow employees and to management concerted activity).
The record here establishes that prior to the Facebook dis-
cussion several employees, including Sanzone, had spoken at
the restaurant about Respondent’s calculation of their tax with-
holdings, and that a number of them owed a tax payment to the
State of Connecticut after filing their 2010 tax returns. Indeed,
DelBuono and Daddona were aware that this was an important
issue for a number of the employees, and had as a result sched-
uled a meeting between the employees and Respondent’s pay-
roll administrator for the week after Sanzone and Spinella were
discharged. The employees who posted comments on
LaFrance’s Facebook account specifically discussed the issues
they intended to raise at this upcoming meeting and avenues for
possible complaints to government entities. As a result, I find
that the employees’ Facebook discussion was part of an ongo-
ing sequence of events involving their withholdings and taxes
owed to the State of Connecticut, and was therefore concerted
activity. See, e.g., Tampa Tribune, 351 NLRB 1324, 1325
(2007), enf. denied 560 F.3d 181 (4th Cir. 2009) (single con-
versation concerted when “part of an ongoing collective dia-
logue” between respondent and its employees and a “logical
outgrowth” of prior concerted activity); Circle K Corp., 305
NLRB 932, 933–934 (1991), enfd. 989 F.2d 498 (6th Cir. 1993)
(“invitation to group action” concerted activity regardless of its
outcome).
I further find that Spinella’s selecting the “Like” option on
LaFrance’s Facebook account constituted participation in the
discussion that was sufficiently meaningful as to rise to the
level of concerted activity. Spinella’s selecting the “Like”
option, so that the words “Vincent VinnyCenz Spinella . . .
like[s] this” appeared on the account, constituted, in the context
of Facebook communications, an assent to the comments being
made, and a meaningful contribution to the discussion. In fact,
Spinella’s indicating that he “liked” the conversation was suffi-
ciently important to engender the meeting with DelBuono and
Daddona which ended with his discharge. In addition, the
Board has never parsed the participation of individual employ-
ees in otherwise concerted conversations, or deemed the protec-
tions of Section 7 to be contingent upon their level of engage-
ment or enthusiasm. Indeed, so long as the topic is related to
the employment relationship and group action, only a “speaker
and a listener” is required. KNTV, Inc., 319 NLRB at 450. I
find therefore that Spinella’s selecting the “Like” option, in the
context of the Facebook conversation, constituted concerted
activity as well.
I find that Sanzone and Spinella’s Facebook comments were
not sufficiently egregious as to lose the protection of the Act
under Atlantic Steel and its progeny.5 The Atlantic Steel analy-
5 Contrary to Respondent’s contention in its posthearing brief, the
Atlantic Steel analysis is not limited to statements made during formal
grievance proceedings. See, e.g., Plaza Auto Center, Inc., 355 NLRB

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 324
sis requires the consideration of four factors: (i) the place of
the discussion; (ii) the discussion’s subject matter; (iii) the na-
ture of the outburst on the part of the employee; and (iv)
whether the outburst was provoked by the employer’s unfair
labor practices. See, e.g., Plaza Auto Center, Inc., above at
495, citing Atlantic Steel, 245 NLRB at 816. These four crite-
ria are intended to permit “some latitude for impulsive conduct
by employees” during protected concerted activity, while ac-
knowledging the employer’s “legitimate need to maintain or-
der.” Plaza Auto Center, Inc., 355 NLRB at 495. As the Board
has stated, the protections of Section 7 must “take into account
the realities of industrial life and the fact that disputes over
wages, bonuses, and working conditions are among the disputes
most likely to engender ill feelings and strong responses.”
Consumers Power Co., 282 NLRB 131, 132 (1986). Therefore,
statements during otherwise protected activity lose the Act’s
protection only where they are “so violent or of such serious
character as to render the employee unfit for further service.”
St. Margaret Mercy Healthcare Centers, 350 NLRB 203, 204–
205 (2007), enfd. 519 F.3d 373 (7th Cir. 2008), quoting Dreis
& Krump Mfg. Co. v. NLRB, 544 F.2d 320, 329 (7th Cir. 1976).
In order to apply the Atlantic Steel analysis, the specific
statements at issue must be determined. Sanzone posted one
comment on LaFrance’s Facebook account: “I owe too. Such
an asshole.” Although Sanzone testified that she was using the
word “asshole” to refer to the fact that she owed tax monies to
the State of Connecticut, I find that the more plausible conclu-
sion is that she was in fact referring to Ralph DelBuono, who
was responsible for Respondent’s accounting, and is discussed
by LaFrance. Spinella clicked the “Like” option, resulting in
the statement “Vincent VinnyCenz Spinella and . . . like this,”
which refers in the context of a Facebook discussion to the
entire topic as it existed at the time.
I reject Respondent’s contention that Sanzone and Spinella
may be deemed responsible for comments that they did not
specifically post, such as those of LaFrance. Respondent
makes much of the fact that it did not discharge the other two
employees—Danielle Marie Parent and Sarah Baumbach—who
participated in the discussion, contending that this illustrates
that Sanzone and Spinella’s comments lost the Act’s protection.
Such an argument is not meaningful within the context of the
Atlantic Steel analysis, and evidence that some employees in-
volved in protected concerted activity were not subject to retal-
iation generally carries little weight in the Wright Line context.
In any event, Respondent makes no attempt to explain why
Parent and Baumbach should not be charged with having
adopted LaFrance’s comments, as were Sanzone and Spinella.
In addition, the Board has emphasized that when evaluating the
conduct of individual employees engaged in a single incident of
concerted activity, each employee’s specific conduct must be
analyzed separately. Crowne Plaza LaGuardia, 357 NLRB
1097, 1100–1102 (2011) (only employees that deliberately
attempted to physically restrain manager lost Sec. 7’s protec-
at 493, 495 (statement made during meeting between employee and
managers in nonunionized workplace); Datwyler Rubber & Plastics,
Inc., 350 NLRB 669, 669–670 (2007) (outburst occurred during em-
ployee meeting).
tion; other employees involved in confrontation were unlawful-
ly discharged). As a result, the two comments under considera-
tion are Sanzone’s remark, “I owe too. Such an asshole.” and
Spinella’s statement “Vincent VinnyCenz Spinella [and] like
this.”
The first of the Atlantic Steel factors–the place of the discus-
sion–militates in favor of a finding that Sanzone and Spinella’s
comments did not lose the protection of the Act. The com-
ments occurred during a Facebook conversation, and not at the
workplace itself, so there is no possibility that the discussion
would have disrupted Respondent’s work environment. Dat-
wyler Rubber & Plastics, Inc., 350 NLRB at 670 (outburst
which took place during a meeting in the employee breakroom
not disruptive to employer’s work processes). Because Del-
Buono and Respondent’s other owners were not present, there
was no direct confrontational challenge to their managerial
authority.
The evidence does establish, as Respondent contends, that
two of its customers participated in the Facebook conversation.
However, I find that this fact is insufficient to remove Sanzone
and Spinella’s comments from the protection of the Act. The
Board has held that the presence of customers during brief epi-
sodes of impulsive behavior in the midst of otherwise protected
activity is insufficient to remove the activity from the ambit of
Section 7’s protection where there is no evidence of disruption
to the customers. Crowne Plaza LaGuardia, 357 NLRB 1097,
1102 (presence of two hotel guests during employees’ loud
chanting and confrontation with manager insufficient to divest
activity of statutory protection without evidence that services
were disrupted); Goya Foods of Florida, 347 NLRB 1118,
1134 (2006), enfd. 525 F.3d 1117 (11th Cir. 2008) (brief epi-
sode of shouting inside supermarket insufficient to render activ-
ity unprotected in absence of evidence of customer disruption).
In addition, the activity at issue here did not take place at Re-
spondent’s restaurant, but on the Facebook account of a former
employee, whom customers would have to specifically locate
and “befriend” in order to view. As a result, the situation at
issue here is materially different from conduct occurring in an
employer’s establishment, which customers engaged in ordi-
nary business transactions with the employer would be forced
to witness. Finally, there is no evidence that the Facebook
discussion somehow generally disrupted Respondent’s custom-
er relationships. Although Daddona testified that he had not
seen one of the customers who participated in the conversation
since that time, there is no evidence as to why this customer
had not visited the restaurant. In fact, the other customer who
participated in the conversation stated that in his opinion the
restaurant was too expensive. As a result, there is insufficient
evidence to find that Sanzone and Spinella’s comments resulted
in some sort of harm to Respondent’s business.
For all of the foregoing reasons, I find that the first compo-
nent of the Atlantic Steel analysis militates in favor of a finding
that Sanzone and Spinella’s participation in the Facebook dis-
cussion did not lose its protected character.
With respect to the second aspect of the Atlantic Steel analy-
sis, the subject matter of the discussion, the evidence establish-
es that the Facebook conversation generally addressed the cal-
culation of taxes on the employees’ earnings by Respondent,

TRIPLE PLAY SPORTS BAR & GRILL 325
and the fact that many of the employees ended up owing money
to the State of Connecticut after filing their 2010 tax returns.
Because the subject matter of the conversation involved and
protected concerted activity, this factor militates in favor of a
finding that Sanzone and Spinella’s activity remained protected
under the Act. Plaza Auto Center, Inc., 355 NLRB at 495 (dis-
cussion involving intemperate comments addressed protected
concerted activity pertaining to compensation).
As to the third factor, the nature of Sanzone and Spinella’s
“outburst” clearly did not divest their activity of the Act’s pro-
tection under the Atlantic Steel line of cases. First of all, the
comments were not made directly to DelBuono or Daddona,
and did not involve any threats, insubordination, or physically
intimidating conduct. See Plaza Auto Center, above at 496–
497 (nature of outburst “not so opprobrious” as to deprive em-
ployee of statutory protection where no evidence of physical
harm or threatening conduct); Tampa Tribune, 351 NLRB at
1326 (employee’s outburst remained protected where not di-
rected at manager and unaccompanied by physical conduct,
threats, or confrontational behavior). Spinella’s comment con-
tained no profanity, and Sanzone’s use of the word “asshole” to
describe DelBuono is clearly insufficient to divest her activity
of the Act’s protection.6 See Plaza Auto Center, above at 495–
498 (employee referred to owner as a “f—king motherfucker,”
“f—king crook,” and “asshole”); Tampa Tribune, 351 NLRB at
1324–1325 (employee called vice president a “stupid f—king
moron”); see also Alcoa, Inc., 352 NLRB 1222, 1225–1226
(2008) (employee referred to supervisor as an “egotistical f–
ker”); Burle Industries, 300 NLRB 498 (1990), enfd. 932 F.2d
958 (3d Cir. 1991) (employee called supervisor a “f—king
asshole”).
Respondent contends that Sanzone and Spinella’s remarks
also lost the Act’s protection in that they were disparaging and
disloyal statements within the meaning of NLRB v. Electrical
Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953).
In that case, employee statements were found unprotected
where they were made “at a critical time in the initiation of the
company’s business,” were unrelated to any ongoing labor
dispute, and constituted “a sharp, public, disparaging attack
upon the quality of a company’s product and its business poli-
cies, in a manner reasonably calculated to harm the company’s
reputation and reduce its income.” Electrical Workers Local
1229 (Jefferson Standard), 346 U.S. at 472; see also Santa
Barbara News-Press, 357 NLRB 452, 454–455 (2011); MasTec
Advanced Technologies, 357 NLRB 103, 107 (2011); Valley
Hospital Medical Center, 351 NLRB 1250, 1252 (2007), enfd.
188 LRRM 2384 (9th Cir. 2009). The Board has cautioned that
“disparagement of an employer’s product” and “the airing of
what may be highly sensitive issues” must be carefully distin-
guished. Valley Hospital Medical Center, 351 NLRB at 1252.
In order to lose the Act’s protection, public criticism of the
employer must be made with a “malicious motive.” Id. In this
respect, the Board has held that statements are “maliciously
6 The epithet “shady little man” is also clearly insufficient to divest a
statement from the protection of the Act under the Atlantic Steel line of
cases, even in the event that Sanzone and Spinella could be deemed to
have adopted this comment of LaFrance’s.
untrue” when “made with knowledge of their falsity or with
reckless disregard for their truth or falsity.”7 MasTec Advanced
Technologies, 357 NLRB 103, 107. The fact that statements
are “false, misleading, or inaccurate” is not sufficient to estab-
lish that they are maliciously untrue. Id.; see also Valley Hospi-
tal Medical Center, 351 NLRB at 1252.
As an initial matter, however, I find that the statements made
by Sanzone and Spinella here never lost the Act’s protection, in
that they were not susceptible to a defamatory meaning under
the relevant caselaw. It is axiomatic that prior to considering
issues of reckless or knowing falsity, “there must be a false
statement of fact.” DHL Express, Inc., 355 NLRB 680, 680 fn.
3, 695 (2010), quoting Steam Press Holdings v. Hawaii Team-
sters Local 996, 302 F.3d 998, 1009 fn. 6 (9th Cir. 2002). The
Board and the courts have long recognized that in the context of
a labor dispute, statements may be “hyperbolic,” biased, “ve-
hement,” “caustic,” and may even involve a “vigorous epithet,”
while retaining the Act’s protection. DHL Express, Inc., 355
NLRB 680, quoting Joliff v. NLRB, 513 F.3d 600, 609–610 (6th
Cir. 2008); see also Valley Hospital Medical Center, 351
NLRB at 1253. Sanzone’s statement, “I owe to . . . such an
asshole,” accurately reflects the fact that she did owe a tax
payment to the State of Connecticut, and her referring to Del-
Buono as an “asshole” constitutes an epithet, as opposed to an
assertion of fact. Joliff, 513 F.3d at 609–610; see also Moriarty
v. Lippe, 162 Conn. 371, 294 A.2d 326 (Conn. 1972) (epithets
such as “big fat oaf,” “son of a bitch” and other “words of gen-
eral abuse” are not slanderous per se, and require proof of spe-
cial damages for recovery). Spinella’s statement “Vincent Vin-
nyCenz Spinella . . . like[s] this” is also not a statement of fact
with respect to Respondent or DelBuono. As a result, Sanzone
and Spinella’s statements are not even potentially defamatory,
and did not lose the protection of the Act under the Jefferson
Standard line of cases. I would reach the same conclusion even
if I found that Sanzone and Spinella had somehow adopted the
comments of LaFrance and the other employees. See Steam
Press Holdings, Inc., 302 F.2d at 1002, 1005–1009 (accusations
that company’s owner was “making money” and “hiding mon-
ey,” which belied employer’s asserted poor financial condition
during negotiations, were not fact statements susceptible to a
defamatory meaning).
I also find that the statements made by Sanzone and Spinella
were not deliberately false, or made with reckless disregard for
their truth or falsity, even assuming they somehow adopted
LaFrance’s comments that DelBuono “fucked up the paper-
work,” was “a shady little man,” and “probably pocketed [the
tax deductions] from all our paychecks.” There is no real dis-
pute that DelBuono was responsible for Respondent’s account-
ing, and that many of Respondent’s employees owed taxes to
7 As Respondent discusses in its post-hearing brief, the Supreme
Court has also applied this standard, originating in New York Times v.
Sullivan, 376 U.S. 254 (1964), to actions for defamation involving
labor disputes and other conduct protected by the Act. See Linn v.
Plant Guards, 383 U.S. 53, 64–65 (1966) (State law defamation actions
based upon statements made in the course of a labor dispute permissi-
ble where the plaintiff can show that the defamatory statements were
made with malice and caused damages); see also Old Dominion Branch
No. 496, Letter Carriers v. Austin, 418 U.S. 264, 273 (1974).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 326
the State of Connecticut after filing their 2010 tax returns.
Indeed, the evidence establishes that the problem was so wide-
spread, and had caused such consternation among Respondent’s
employees, that a meeting had been arranged with representa-
tives from the payroll service used by Respondent for the fol-
lowing week. In addition, Sanzone testified that her paycheck
only reflected 40 hours of work per week regardless of her
actual work hours, and that she was sometimes paid in cash for
work in excess of 40 hours per week, and sometimes not paid at
all for overtime hours. While DelBuono generally denied this
during his testimony, Respondent provided no other meaningful
evidence to rebut Sanzone’s assertions.
Given the requirement of malice, the Board considers the
perspective of the employee in order to determine whether
statements, regardless of their actual truth, were made with
knowledge that they were false or with reckless disregard for
their truth or falsity. MasTec Advanced Technologies, 357
NLRB 103, 107 (statements in dispute “fairly reflected [em-
ployees’] personal experiences” and were therefore not made
maliciously); Valley Hospital Medical Center, 351 NLRB at
1253 (statements not maliciously false where they were based
on employee’s “own experiences and the experiences of other
nurses as related to [employee]”). Assuming LaFrance’s com-
ments were adopted by Sanzone and Spinella, the evidence
establishes that, given the employees’ direct experience with
their 2010 tax returns and Respondent’s other payroll practices,
they were not malicious. While they might be considered “hy-
perbolic,” the evidence does not establish that they were made
with knowledge of their falsity or reckless disregard for the
truth. See, e.g., Asplundh Tree Expert Co., 336 NLRB 1106,
1108 (2001), vacated on other grounds 365 F.3d 168 (3d Cir.
2004) (employee’s statement that supervisor had “pocketed”
the difference between employees’ per diem and actual hotel
expenses protected); Mediplex of Wethersfield, 320 NLRB 510,
513 (1995) (accusation that employer had “cheated” employees
through paid time off program protected); KBO, Inc., 315
NLRB 570 (1994), enfd. 96 F.3d 1448 (6th Cir. 1996) (state-
ment that employer was “taking money out of the employees’
profit-sharing accounts to pay the lawyers to fight the Union”
protected).
In addition, the evidence establishes that Sanzone and Spi-
nella’s statements were not directed to the public as part of a
campaign to raise public awareness of the employees’ dispute
with Respondent. Other cases applying the Jefferson Standard
analysis involve the deliberate dissemination of allegedly dis-
paraging statements through the news media, or as part of a
campaign specifically directed to the public at large. See, e.g.,
MasTec Advanced Technologies, 357 NLRB 103, 105–106
(statements made on news broadcast); Valley Hospital Medical
Center, 351 NLRB at 1250–1251, 1253–1254 (statements made
at press conference organized by the union, on a website main-
tained by the union and accessible to the general public, and in
a flyer distributed to the public by the union in front of the em-
ployer’s facility). Here, by contrast, Sanzone, Spinella, and
LaFrance’s comments were posted on LaFrance’s Facebook
account, which was not accessible to the general public. In-
stead, each person wishing to view the account (including cus-
tomers of Respondent) needed to obtain LaFrance’s specific
permission through an accepted request to become her
“Friend.” This militates against a finding that the statements
made during the Facebook discussion were made with a mali-
cious intent to injure Respondent’s business and DelBuono’s
reputation in the eye of the general public. The more reasona-
ble conclusion is that the participants were, in LaFrance’s
words, “venting” their frustration with one another regarding
the tax withholding situation and discussing the upcoming
meeting with representatives from Respondent’s payroll ser-
vice.
The other factors considered as part of the Jefferson Stand-
ard analysis also do not support a conclusion that Sanzone and
Spinella’s statements on LaFrance’s Facebook account lost the
protection of the Act. There is no evidence that the statements
were made at a critical time during the initiation of the employ-
er’s business; Respondent’s restaurant and bar had been operat-
ing since December 2009. The statements were directly related
to the ongoing dispute between the employees and Respond-
ent’s management regarding the tax treatment of the employ-
ees’ earnings, which had resulted in a number of the employ-
ees’ owing taxes to the State of Connecticut. They were not a
gratuitous attempt to injure Respondent’s business. Finally,
Sanzone and Spinella’s statements were not an attack on Re-
spondent’s product. They did not address, for example, the
quality of the food, beverages, services, or entertainment at
Respondent’s restaurant and bar,8 but were solely related to the
employees’ owing taxes to the State.
For all of the foregoing reasons, I find that the third compo-
nent of the Atlantic Steel analysis—the nature of the outburst—
indicates that Sanzone and Spinella’s statements did not lose
their protected character.
As for the fourth of the Atlantic Steel criteria, whether the
outburst was provoked by Respondent’s unfair labor practices,
General Counsel does not contend that Sanzone and Spinella’s
Facebook statements were provoked by any unfair labor prac-
tice of Respondent. Therefore, this component of the analysis
militates in favor of a finding that Sanzone and Spinella’s
statements were not protected. However, in that I have con-
cluded that factors one, two, and three of the Atlantic Steel
standard support a finding that Sanzone and Spinella’s Face-
book comments did not lose the protection of the Act, I find
that they remained protected concerted activity.
3. Sanzone and Spinella’s discharges were unlawful
under the Burnup & Sims standard
As discussed above, the Burnup & Sims analysis involves the
application of four factors: (i) whether the discharged employ-
ee was engaged in protected activity at the time of their pur-
ported misconduct; (ii) whether the employer knew of the pro-
tected activity; (iii) whether the basis for the discharge was the
employee’s alleged misconduct in the course of their protected
8 Indeed, the sole comment of this nature was offered, unsolicited,
by customer Jonathan Feeley, who stated that Respondent’s restaurant
and bar were “way too expensive.” Customer DeSantis stated, “Yeah I
really don’t go to that place anymore,” but there is no evidence to es-
tablish why. In fact, because he made this comment during the discus-
sion on LaFrance’s Facebook account, he had presumably stopped
frequenting Respondent’s restaurant prior to that time.

TRIPLE PLAY SPORTS BAR & GRILL 327
activity; and (iv) whether the employee was actually guilty of
the misconduct. When the evidence establishes that the em-
ployee was discharged based on alleged misconduct occurring
in the course of protected activity, the burden shifts to the re-
spondent to show that “it had an honest or good-faith belief that
the employee engaged in the misconduct.” Alta Bates Summit
Medical Center, 357 NLRB 259, 259, 260 (2011); see also
Roadway Express, 355 NLRB 197, 1015 (2010), enfd. 427
Fed.Appx. 838 (11th Cir. 2011). If the respondent does so, the
burden then shifts back to the General Counsel to prove that the
employee did not actually engage in the alleged misconduct.
Alta Bates Summit Medical Center, supra at 260; Roadway
Express, 355 NLRB at 1015.
The evidence establishes here, as discussed above, that
Sanzone and Spinella were engaged in protected concerted
activity—the discussion with other employees of Respondent’s
calculation of their tax withholdings—at the time of their al-
leged misconduct. The record also establishes that Respondent
knew of this protected activity at the time that Sanzone and
Spinella were discharged. Daddona testified that his sister
informed him of the Facebook discussion on LaFrance’s ac-
count, and that he viewed the discussion with DelBuono, prior
to Sanzone and Spinella’s discharge. In fact, Respondent ad-
mits that it discharged Sanzone in part for her comments, and
as discussed below DelBuono testified that he initiated the
meeting during which Spinella was discharged specifically to
confront him about his having selected the “Like” option.
Therefore, the first two components of the Burnup & Sims
analysis are satisfied.
I also find that the evidence establishes that Sanzone and
Spinella were discharged for alleged misconduct in the course
of their protected activity, the third criterion of the Burnup &
Sims analysis. Respondent admits that Sanzone was discharged
for “disloyalty,” comprised in part of her comment on
LaFrance’s Facebook account.9 However, Respondent con-
tends that Spinella was discharged for poor work performance,
including failing to stock deliveries, unauthorized cigarette
breaks, and excessive cell phone use and socializing with other
staff. The evidence does not substantiate this contention.
While Daddona testified that Spinella was not discharged be-
cause of his having selected the “Like” option on LaFrance’s
Facebook account, and that his having done so was not dis-
cussed during the meeting which culminated in his discharge,
DelBuono thoroughly contradicted these assertions. Thus,
DelBuono testified that he and Daddona decided to confront
Spinella because his “Facebook comment raised a red flag” that
he was not happy working for Respondent. DelBuono testified
that during the meeting he told Spinella that he was obviously
not happy, and “questioned him” regarding the Facebook dis-
cussion, asking him, “if he liked those defamatory and deroga-
tory statements so much well why is he still working for us?”
DelBuono stated that he then told Spinella that because he
“liked the disparaging and defamatory comments,” it was “ap-
9 For the reasons discussed in sec. 4 regarding Respondent’s asserted
reasons for Sanzone and Spinella’s discharges based on work perfor-
mance under Wright Line, I find that Sanzone was not discharged for
reasons relating to cash register inaccuracies.
parent” that Spinella wanted to work somewhere else. I there-
fore find based on DelBuono’s testimony that Spinella was
discharged because of his having selected the “Like” option on
LaFrance’s Facebook account, and that both he and Sanzone
were discharged for alleged misconduct occurring in the course
of their protected activity.
Finally, as discussed above, I have found that Sanzone and
Spinella’s comments did not lose the Act’s protection under the
four Atlantic Steel factors, and that they did not lose the protec-
tion of the Act under the Jefferson Standard analysis, in that
they were not made with knowledge of their falsity or with
reckless disregard for their falsity or truth. I therefore find that
regardless of the character of any belief regarding misconduct
held by Daddona and DelBuono, Sanzone and Spinella did not
in fact commit misconduct by virtue of their participating in the
discussion on LaFrance’s Facebook account.
For all of the foregoing reasons, I find under Burnup & Sims
that Respondent violated Section 8(a)(1) of the Act by dis-
charging Sanzone and Spinella.
4. Respondent’s Wright Line defenses
In addition to its arguments regarding the nonprotected na-
ture of Sanzone and Spinella’s participation in the Facebook
discussion, Respondent asserts reasons for Sanzone and Spinel-
la’s discharges based upon their work performance, and unre-
lated to their protected concerted activity. Respondent con-
tends that Sanzone was discharged for repeated cash register
inaccuracies, and that Spinella was discharged for poor work
performance involving a number of issues. To the extent that
Respondent has raised issues regarding its motivation for the
discharges, I will analyze these contentions within the frame-
work articulated in Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
To establish an unlawful discharge under Wright Line, the
General Counsel must prove that the employee’s protected
conduct was a motivating factor in the employer’s decision to
take action against them by proving the employee’s protected
activity, employer knowledge of that activity, and animus
against the employee’s protected conduct. Manno Electric, Inc.,
321 NLRB 278, 280 (1996); Naomi Knitting Plant, 328 NLRB
1279, 1281 (1999). The burden of persuasion then shifts to the
employer to show that it would have taken the same action even
in the absence of the protected conduct. Wright Line, 251 at
1089; Septix Waste, Inc., 346 NLRB 494, 496 (2006); Wil-
liamette Industries, 341 NLRB 560, 563 (2004). Respondent
must persuade by a preponderance of the credible evidence that
it would have taken the same action in the absence of the pro-
tected conduct. T&J Trucking Co., 316 NLRB 771 (1995);
Manno Electric, Inc., 321 NLRB at 280 fn. 12 (1996).
I find that General Counsel has established a prima facie
showing that Sanzone and Spinella’s protected concerted activi-
ty was a motivating factor in their discharges. As discussed
above, Sanzone and Spinella’s participation in the Facebook
discussion remained protected activity throughout, and there is
no question that at the time they were discharged Daddona and
DelBuono were aware of their comments. Animus against their

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 328
protected activity is evinced by the timing of their discharges
immediately after the Facebook discussion, and Daddona and
DelBuono’s comments while discharging them, some of which,
as addressed below, constitute independent violations of Sec-
tion 8(a)(1). See, e.g., Manorcare Health Services–Easton, 356
NLRB 202, 204, 226 (2010), enfd. 661 F.3d 1139 (D.C. Cir.
2011) (discipline of employee “just days” after initial public
support for the union indicative of unlawful motivation); Austal
USA, LLC, 356 NLRB 363, 363–364 (2010) (8(a)(1) violations
constitute evidence of animus).
The evidence presented here is insufficient to satisfy Re-
spondent’s burden to show that it discharged either Sanzone or
Spinella for legitimate, nondiscriminatory reasons. Respond-
ent’s asserted work-performance reasons for discharging Spi-
nella are utterly unsubstantiated by the record. Both Daddona
and DelBuono generally testified that Spinella failed to restock
supplies in a timely manner, socialized excessively with wait-
resses, and took too many breaks to smoke cigarettes and use
his cell phone. However, DelBuono testified that what “raised
a red flag” and immediately precipitated the meeting which
culminated in Spinella’s discharge was his having selected the
“Like” option on LaFrance’s Facebook account. According to
DelBuono, he then “questioned“ Spinella regarding the Face-
book conversation before asking him why he was still working
for Respondent; the evidence does not establish that Spinella’s
various performance problems were even touched upon during
this meeting. Given DelBuono’s testimony, Daddona’s testi-
mony that the Facebook discussion was not mentioned during
the meeting and played no role in Respondent’s reasons for
discharging Spinella is obviously not worthy of belief, and
undermines his credibility as a witness overall.
Other factors also contradict Respondent’s assertion that it
discharged Spinella for work performance problems. Daddona
testified that he first noticed Spinella’s poor work habits during
the first 2 months of his employment, and discussed them with
him on a minimum of six occasions. Although I do not find
Daddona to be a credible witness, Spinella did testify that Dad-
dona and DelBuono had a number of informal conversations
with him and the other kitchen workers, which included sug-
gestions for improvement. However, there is no evidence that
Respondent issued written discipline to Spinella, and no evi-
dence that Spinella was ever informed in any way that failure to
improve would result in discharge. Crediting Spinella’s testi-
mony, I find that DelBuono and Daddona’s discussions with
him failed to rise to the level of meaningful disciplinary action.
In any event, it is also well settled that the imposition of disci-
pline for conduct that has been tolerated or condoned consti-
tutes evidence of unlawful motivation. See, e.g., Air Flow
Equipment, Inc., 340 NLRB 415, 419 (2003). As a result, I
find that Respondent has failed to substantiate its contention
that Spinella was discharged for work performance problems,
as opposed to his protected participation in the Facebook dis-
cussion.
With respect to Respondent’s assertion that Sanzone was
discharged in part for cash register inaccuracies, the credible
evidence establishes that Daddona informed her on one occa-
sion that her cash drawer was short after a bartending shift
some time in the fall of 2010. I do not credit Daddona’s asser-
tion that her cash drawer “somewhat regularly” contained funds
in excess of what could be accounted for through sales at the
end of her bartending shifts, which he purportedly first discov-
ered in August 2010. Daddona claims he was told by a busi-
ness acquaintance that this might mean that Sanzone was re-
cording fewer drinks than were actually purchased by custom-
ers, and in effect stealing the difference. If this is the case, it is
implausible that Respondent would not have taken more imme-
diate action to discharge Sanzone given the direct impact on its
business and the egregious nature of potential theft. The evi-
dence also establishes that Sanzone received a raise in Novem-
ber 2010 and a Christmas bonus that same year, actions which
no reasonable employer would take if it truly believed that she
was possibly engaged in theft. Respondent also failed to offer a
shred of documentary evidence to substantiate its contention
that Sanzone’s cash drawer regularly contained an overage of
funds. Indeed, DelBuono, who has overall responsibility for
Respondent’s accounting, was not even questioned regarding
this asserted reason for Sanzone’s discharge. As a result, I find
that Respondent has failed to provide adequate evidence to
substantiate its contention that Sanzone was discharged for cash
register inaccuracies, as opposed to her comment during the
discussion on LaFrance’s Facebook account.
For all of the foregoing reasons, I find that Respondent has
failed to meet its burden to establish that it discharged Sanzone
and Spinella for legitimate, nondiscriminatory reasons. I there-
fore find that Sanzone and Spinella’s discharges violated Sec-
tion 8(a)(1).
B. Threats to Initiate Legal Action
The consolidated complaint alleges that Respondent threat-
ened employees with legal action in violation of Section 8(a)(1)
on February 3 and 4. There is no dispute that Respondent’s
attorney and admitted agent, Joseph Yamin, wrote to Sanzone
on February 4, threatening to institute a defamation action
against her if she did not retract her statement on LaFrance’s
Facebook account. Sanzone had LaFrance delete her comment,
and sent a letter to Yamin stating that her comment had been
erased. Yamin then wrote to Sanzone stating that she was re-
quired to post a “formal statement that the defamatory state-
ments were untrue,” and demanded written proof that she had
done so. Sanzone did not respond, and did not hear from
Yamin again.
The evidence overall also establishes that Respondent threat-
ened Spinella with legal action on February 3, as alleged in the
consolidated complaint. I credit Spinella’s testimony that as he
was leaving the discharge meeting with Daddona and DelBuo-
no on February 3, DelBuono stated that Spinella would be hear-
ing from Respondent’s lawyers. Daddona’s testimony regard-
ing this meeting is simply not believable, as he contended that
Spinella’s participation in the Facebook conversation was never
discussed. DelBuono’s testimony is more credible, as he ad-
mitted to “questioning” Spinella regarding the Facebook dis-
cussion, including asking Spinella “why is he still working for
us?” given his affinity for “the disparaging and defamatory
comments.” Given DelBuono’s corroboration of Spinella’s
account in this regard, and Respondent’s written threat, by its
attorney, to initiate an action against Sanzone, I credit Spinel-
TRIPLE PLAY SPORTS BAR & GRILL 329
la’s statement that DelBuono told him as he left the February 3
meeting that he would hear from Respondent’s attorney. Given
DelBuono’s statements during the meeting that the comments
were defamatory, and that his attorney had advised him to dis-
charge anyone involved for that reason, Spinella would reason-
ably have interpreted DelBuono’s statement that he would hear
from Respondent’s attorney as a threat of legal action.
There is no dispute that Respondent never filed an action for
defamation against Sanzone, Spinella, or LaFrance.
The General Counsel contends that Respondent’s threats to
sue Sanzone and Spinella for defamation violated Section
8(a)(1), in that they reasonably tended to interfere with, re-
strain, and coerce them in the exercise of their Section 7 rights.
DHL Express, Inc., 355 NLRB 680 fn. 3, 692–694 (2010); see
also Network Dynamics Cabling, 351 NLRB 1423, 1425
(2007); Postal Service, 350 NLRB 125, 125–126 (2007), enfd.
526 F.3d 729 (11th Cir. 2008). Respondent argues that its cor-
respondence with Sanzone was permissible in that the filing
and prosecution of a well-founded lawsuit does not violate
Section 8(a)(1) even if initiated with a retaliatory motive, citing
Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983).
Respondent contends that an action for defamation against
Sanzone would have had a reasonable basis, and therefore Re-
spondent’s threats to initiate one did not violate Section
8(a)(1).10
The Board has consistently held that threats to bring legal ac-
tion against employees for engaging in protected concerted
activity violate Section 8(a)(1), in that they reasonably tend to
interfere with, restrain, and coerce employees in the exercise of
their Section 7 rights. DHL Express, Inc., 355 NLRB 680 fn. 3,
692, citing S.E. Nichols Marcy Corp., 229 NLRB 75 (1977). In
BE & K Construction Co., 351 NLRB 451 (2007), the Board
held that retaliatory but reasonably based lawsuits do not vio-
late Section 8(a)(1). However, the Board has explicitly de-
clined to apply this standard to threats to initiate litigation, even
where they are “incidental” to the actual filing of the lawsuit
itself. Postal Service, 350 NLRB at 125–126; see also DHL
Express, Inc., 355 NLRB 680 fn. 3. In addition, the Board has
repeatedly held that, even if it had determined that the BE & K
standard applied to threats of litigation “incidental” to the filing
of a lawsuit, such threats cannot be considered “incidental” to
litigation where, as here, a lawsuit was never filed.11 DHL
Express, Inc., 355 NLRB 680 fn. 3; Postal Service, 350 NLRB
at 125–126. As a result, I find that the BE & K standard is in-
applicable.
As discussed in section A,2 above, I find that Sanzone and
Spinella’s statements were not defamatory, and were not made
with knowledge of their falsity or with reckless disregard for
their truth or falsity. DHL Express, Inc., 355 NLRB at 692. I
10 Respondent does not advance any argument regarding DelBuono’s
threat to take legal action against Spinella.
11 Sanzone’s written response to Yamin’s February 4 letter stating
that she had had LaFrance remove her remark from LaFrance’s Face-
book account further supports the conclusion that the threat to initiate
legal action against her was not “incidental” to the filing of a lawsuit.
See Network Dynamics Cabling, 350 NLRB at 1427 fn. 14.
therefore find, as discussed above, that their participation in the
Facebook conversation never lost the Act’s protection.
As a result, the evidence establishes that Respondent’s re-
peated threats to bring legal action against Sanzone and Spinel-
la would reasonably tend to interfere with, restrain, and coerce
them in the exercise of their Section 7 rights. Indeed, Sanzone
had LaFrance remove her statement from the Facebook ac-
count, and Spinella returned to the account to select the “Un-
like” option. Even after Sanzone did so, Respondent’s attorney
wrote to her again demanding written proof that she had made
“a formal statement” that her previous remark was “untrue.”
See DHL Express, Inc., 355 NLRB at 693–694 (threat to initi-
ate legal action coercive where never retracted, even after “the
allegedly offensive statements were corrected”). Sanzone and
Spinella’s responses to Respondent’s threats of litigation, and
Respondent’s subsequent insistence on pursuing the matter
through its attorney, further indicate that its conduct was im-
permissibly coercive. Thus I find that Respondent violated
Section 8(a)(1) of the Act by threatening Sanzone and Spinella
with legal action in retaliation for their protected concerted
activity.
C. Other Statements by Daddona and DelBuono
Allegedly Violating Section 8(a)(1)
The consolidated complaint alleges that Respondent also vio-
lated Section 8(a)(1) on February 2, when Daddona informed
employees that they were discharged because of their protected
concerted activities, and on February 3, when DelBuono inter-
rogated employees regarding their protected concerted activi-
ties and threatened employees with discharge for that reason. I
find that the evidence establishes that Respondent committed
these additional violations of Section 8(a)(1).
Sanzone testified that while discharging her on February 2,
Daddona stated that she “wasn’t loyal enough to be working at
Triple Play anymore,” because of her comment on LaFrance’s
Facebook account. Daddona admitted that Sanzone was dis-
charged because “her loyalty was not to us” after “we saw what
was going on on Facebook and with the drawer;” however, he
did not testify regarding his actual conversation discharging
Sanzone. Because Sanzone’s account is therefore not meaning-
fully rebutted,12 the record establishes that Daddona told her
that she was discharged because she was insufficiently “loyal”
to work for Respondent given her comment on Facebook. As
Sanzone’s participation in the Facebook discussion constituted
protected concerted activity, Daddona’s statement to her that
she had been discharged for that reason violated Section
8(a)(1). Extreme Building Services Corp., 349 NLRB 914, 914
fn. 3, 929 (2007) (employer violated Sec. 8(a)(1) by telling an
employee he was discharged because of his union member-
ship); Watts Electric Corp., 323 NLRB 734, 735 (1997) (em-
ployee unlawfully informed that he had been discharged for
distributing union flyers), “revd. in part, vacated in part mem.
166 F.3d 351 (11th Cir. 1998).”
12 I decline to draw an adverse inference based upon the failure of
Daddona and DelBuono to address certain of the events of Sanzone and
Spinella’s discharges during their testimony, as suggested by the Gen-
eral Counsel.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 330
The evidence also establishes that DelBuono coercively in-
terrogated Spinella and unlawfully informed him that those
employees who participated in the Facebook discussion would
be discharged during their meeting on February 3. DelBuono
admitted that he “questioned” Spinella during this meeting, and
I credit Spinella’s testimony that DelBuono asked him about
the identities of the participants, the significance of the “Like”
option, and, as DelBuono testified, “[I]f he liked those defama-
tory and derogatory statements so much well why is he still
working for us?” DelBuono admitted that he told Spinella that
it was “apparent” that he wanted to work somewhere else, and
given the threats to initiate legal action as discussed above, I
credit Spinella’s testimony that DelBuono told him that Re-
spondent’s attorney had advised discharging anyone involved
in the Facebook discussion for defamation.
I find that DelBuono’s questioning of Spinella was coercive
and therefore unlawful. The Board determines whether ques-
tioning regarding protected activity is unlawfully coercive by
considering any background of employer hostility, the nature of
the information, the status of the questioner in the employer’s
hierarchy, the place and method of questioning, and the truth-
fulness of the employee’s answer. Westwood Health Care
Center, 330 NLRB 935, 939 (2000). Here, these factors overall
establish that DelBuono’s questioning was impermissibly coer-
cive. DelBuono and Spinella’s conversation was not a casual
talk on a shop floor between individuals who had some sort of
personal relationship. See Manor Health Services-Easton, 356
NLRB 202, 218 (questioning impermissible where no evidence
of personal friendship between agent and employees); compare
Smithfield Packing Co., 344 NLRB 1, 2 (2004). DelBuono and
Daddona specifically called Spinella into their office for a
meeting, and had LaFrance’s Facebook account displayed on
the computer. Manor Health Services-Easton, 356 NLRB 202,
219 (questioning coercive where interaction was “neither casual
nor accidental”). Sanzone’s discharge the previous day evinces
a backdrop of hostility toward the employees’ protected con-
certed activity. The meeting was characterized by unlawful
conduct on the part of DelBuono, including the statement that
Respondent’s attorney had advised discharging all employees
engaged in the discussion, and DelBuono’s threat to initiate
legal action against Spinella for participating in the Facebook
conversation. See Evergreen America Corp., 348 NLRB 178,
208 (2006), enfd. 531 F.3d 321 (4th Cir. 2008) (questioning
accompanied by statements evincing hostility toward union
activities more likely to be coercive); Demco New York Corp.,
337 NLRB 850, 851 (2002). Finally, the meeting culminated in
Spinella’s unlawful discharge. In these circumstances, the
truthfulness of Spinella’s responses to DelBuono’s questions is
not significant.
I further find that DelBuono’s statement that his attorney had
advised him to discharge every employee who participated in
the Facebook discussion, which occurred in the context of Del-
Buono’s repeatedly demanding that Spinella provide a justifica-
tion for his continued employment, constituted a threat of dis-
charge in violation of Section 8(a)(1). See White Transfer &
Storage Co., 241 NLRB 1206, 1209–1210 (1979) (employer’s
statement to employees that he “had been with his lawyer all
day,” who advised him “that if he had a good enough reason to
terminate [employees], to go ahead and do it” unlawful threat
of discharge).
For all of the foregoing reasons, I find that Daddona and
DelBuono’s statements to Sanzone and Spinella violated Sec-
tion 8(a)(1) of the Act in the manner described above.
D. Respondent’s Internet/Blogging Policy
It is well settled that an employer’s maintenance of a work
rule which reasonably tends to chill employees’ exercise of
their Section 7 rights violates Section 8(a)(1) of the Act. Lafa-
yette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d
52 (D.C. Cir. 1999). A particular work rule which does not
explicitly restrict Section 7 activity will be found unlawful
where the evidence establishes one of the following: (i) em-
ployees would “reasonably construe the rule’s language” to
prohibit Section 7 activity; (ii) the rule was “promulgated in
response” to union or protected concerted activity; or (iii) “the
rule has been applied to restrict the exercise of Section 7
rights.” Lutheran Heritage Village-Livonia, 343 NLRB 646,
647 (2004). The Board has cautioned that rules must be afford-
ed a “reasonable” interpretation, without “reading particular
phrases in isolation” or assuming “improper interference with
employee rights.” Lutheran Heritage Village-Livonia, 343
NLRB at 646.
The General Counsel contends that Respondent’s Inter-
net/Blogging policy is unlawful, in that it states that employees
may be “subject to disciplinary action” for “engaging in inap-
propriate discussions about the company, management, and/or
co-workers.” The General Counsel contends that employees
would reasonably construe the language of the policy to restrict
Section 7 activity given the breadth of the word “inappropri-
ate,” and of the phrase “the company, management and/or co-
workers.” The General Counsel also argues that the rule’s fail-
ure to provide concrete examples of prohibited conduct which
would lead employees to believe that it applies solely to serious
misconduct leaves it susceptible to the interpretation that it
encompasses protected concerted activity.
I find that Respondent’s Internet/Blogging policy is not un-
lawful under the Lutheran Heritage Village standard. The poli-
cy does not explicitly restrict Section 7 activity, and was not
issued in response to an organizing campaign or other protected
concerted activity. Furthermore, there is no evidence that
Sanzone and Spinella were discharged pursuant to the policy or
that the policy has otherwise been applied to restrict employ-
ees’ Section 7 rights. Therefore, the legality of the policy is
contingent upon whether employees would reasonably construe
it to prohibit Section 7 activity.
I find that under the existing case law, the Internet/Blogging
policy would not be reasonably construed as prohibiting Sec-
tion 7 activity.13 I find that the Internet/Blogging policy’s cau-
13 Although Respondent contends that it did not in fact maintain the
policy, the evidence establishes that when Respondent began its opera-
tions in December 2009 the policies contained in Respondent’s em-
ployee handbook were reviewed with Respondent’s initial group of
employees, including Sanzone, at a meeting. DelBuono also offered to
provide the employees at this meeting with copies of the handbook.
Given the foregoing, I find that the policy was maintained by Respond-

TRIPLE PLAY SPORTS BAR & GRILL 331
tion against “inappropriate discussions about the company,
management, and/or co-workers” is similar to restrictions on
speech having a potentially detrimental impact on the company
which the Board has found to be permissible. See Tradesmen
International, 338 NLRB 460, 462–463 (2002) (rule prohibit-
ing “verbal or other statements which are slanderous or detri-
mental to the company or any of the company’s employees”
per-missible). The Board has similarly found that rules prohib-
iting any conduct, on or off-duty, which could injure the com-
pany’s reputation are not unlawful. Tradesmen International,
338 NLRB at 460 (prohibition on “any conduct which is dis-
loyal, disruptive, competitive, or damaging to the company”
permissible); Ark Las Vegas Restaurant Corp., 335 NLRB
1284 fn. 2, 1291–1292 (2001) (rules prohibiting “any conduct,
on or off duty, that tends to bring discredit to, or reflects ad-
versely on, yourself, fellow associates, the Company,” and
“conducting oneself unprofessionally or unethically, with the
potential of damaging the reputation or a department of the
Company” not unlawful); Flamingo Hilton-Laughlin, 330
NLRB 287, 288–289 (1999) (rule prohibiting “off-duty mis-
conduct that materially and adversely affects job performance
or tends to bring discredit to the Hotel” did not violate Sec.
8(a)(1)); see also Albertson’s, Inc., 351 NLRB 254, 258–259
(2007) (rule prohibiting “[o]ff the-job conduct which has a
negative effect on the Company’s reputation or operation or
employee morale or productivity”); Lafayette Park Hotel, 326
NLRB at 825–826 (rules prohibiting conduct which does not
meet employer’s “goals and objectives,” and “improper con-
duct, which affects the employee’s relation-ship with the job,
fellow employees, supervisors or the hotel’s reputation or good
will in the community”).
This conclusion is supported by the context of the allegedly
unlawful segment of the policy. The policy begins by stating
that Respondent “supports the free exchange of information”
among its employees, and states that only when electronic
communi-cations “extend to confidential and proprietary in-
formation” or “inappropriate discussions” would they potential-
ly be subject to disciplinary action. Immediately following that
statement is a requirement that employees clearly identify opin-
ions they share regarding Respondent as their own, as opposed
to those of Respondent. The policy closes by stating that it will
have no effect to the extent it conflicts with State or Federal
law. Under the case law discussed above, I find that in this
context the prohibition on “inappropriate discussions about the
company, management and/or co-workers” would not be rea-
sonably construed as restricting Section 7 activity.
The General Counsel argues that the Internet/Blogging poli-
cy is impermissibly broad, in that it fails to provide specific
examples of inappropriate discussions to clarify that it does not
encompass protected activity. However, as the Board noted in
Tradesmen International, the lawful rules at issue in Lafayette
Park Hotel, Ark Las Vegas Restaurant Corp., and Flamingo
Hilton-Laughlin did not contain specific examples of conduct
which would expose an employee to potential discipline for
conduct injuring the employer’s reputation. Tradesmen Inter-
ent, despite the fact that Sanzone and Spinella never had their own
physical copies of the handbook.
national, 338 NLRB at 461; see Lafayette Park Hotel, 326
NLRB at 824–827; Ark Las Vegas Restaurant Corp., 335
NLRB at 1291–1292; Flamingo Hilton-Laughlin, 330 NLRB at
287–288, 295. The General Counsel also argues that the policy
here is similar to a policy the Board found unlawfully restric-
tive in Claremont Resort & Spa, 344 NLRB 832 (2005). In that
case, the Board held that a policy which prohibited “negative
conversations about associates and/or managers” could be rea-
sonably construed as restricting Section 7 activity. Claremont
Resort & Spa, 344 NLRB at 832. However, the facts at issue
here are dissimilar. The prohibition on “negative conversa-
tions” in that case was issued to employees as part of a list of
10 work rules, some of which addressed working conditions
such as “clocking in and out procedures,” so that the employees
could assume that “negative conversations” regarding those
conditions of employment were prohibited. Claremont Resort
& Spa, 344 NLRB at 832 fn. 5. Here, by contrast, Respond-
ent’s Internet/Blogging policy appears directed toward main-
taining the company’s reputation with respect to the general
public, as were the policies in the cases discussed above. Fur-
thermore, the 10 work rules containing the unlawful restriction
on “negative conversations” were issued in the midst of an
organizing campaign, and a previous administrative law judge’s
decision had determined that the Respondent had unlawfully
prohibited employees from discussing organizing activities
while at work. Claremont Resort & Spa, 344 NLRB at 834,
836. As a result, I find that the facts at issue in Claremont Re-
sort & Spa are distinguishable.
For all of the foregoing reasons, I find that Respondent’s
maintenance of the Internet/Blogging policy in its employee
handbook did not violate Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Three D, LLC d/b/a Triple Play Sports
Bar and Grille, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by dis-
charging Jillian Sanzone on February 2, 2011, in retaliation for
her protected concerted activities.
3. Respondent violated Section 8(a)(1) of the Act by dis-
charging Vincent Spinella on February 3, 2011, in retaliation
for his protected concerted activities.
4. Respondent violated Section 8(a)(1) of the Act by threat-
ening employees with legal action in retaliation for their pro-
tected concerted activities.
5. Respondent violated Section 8(a)(1) of the Act by inform-
ing employees that they were being discharged because of their
protected concerted activities.
6. Respondent violated Section 8(a)(1) of the Act by threat-
ening employees with discharge in retaliation for their protect-
ed concerted activities.
7. Respondent violated Section 8(a)(1) of the Act by coer-
cively interrogating employees regarding their protected con-
certed activities.
8. Respondent did not violate Section 8(a)(1) of the Act by
maintaining the Internet/Blogging policy in its employee hand-
book.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 332
9. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
THE REMEDY
Having found that Respondent has violated the Act, I shall
recommend that it cease and desist therefrom and take certain
affirmative action necessary to effectuate the Act’s purposes.
Having discriminatorily discharged Jillian Sanzone and Vin-
cent Spinella in retaliation for their protected concerted activi-
ties, Respondent must offer Sanzone and Spinella full rein-
statement to their former positions or to substantially equivalent
positions. Respondent must also make Sanzone and Spinella
whole for any loss of earnings or other benefits they may have
suffered as a result of the discrimination against them, plus
interest, in the manner prescribed in F. W. Woolworth, 90
NLRB 289 (1950), and New Horizons for the Retarded, 283
NLRB 1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010). Respondent
shall also be required to remove from its files all references to
Sanzone and Spinella’s unlawful discharges, and to notify them
in writing that this has been done and that the discharges shall
not be used against them.
[Recommended Order omitted from publication.]