Walls, LLC

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 596 Security Walls, LLC and Orlando Franco. Case 28– CA–22483 February 2, 2011 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE AND HAYES On November 25, 2009, Administrative Law Judge Margaret G. Brakebusch issued the attached decision. The General Counsel and the Respondent each filed ex- ceptions, a supporting brief, an answering brief, and a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order. I. OVERVIEW The judge found that the Respondent violated Section 8(a)(1) of the Act by maintaining two overly broad con- fidentiality rules in its employee handbook, but that the Respondent did not violate Section 8(a)(1) by terminat- ing employee Orlando Franco and issuing warnings to employees Royal Jacobs and Jeff Ortega. We agree with the judge, for reasons she stated, that the Respondent’s maintenance of the confidentiality rules violated the Act.1 We find, however, that the Respondent’s discipline 1 One of the rules found unlawful provides that “[i]n cases involving a report of harassment or discrimination, all reasonable efforts will be made to protect the privacy of the individuals involved. . . . Employees who assist in an investigation are required to maintain the confidentiali- ty of all information learned or provided. Violation of confidentiality will result in disciplinary action.” The Board has stated that, if an employer’s rule explicitly restricts Sec. 7 activity, it is unlawful, and even if it does not explicitly restrict Sec. 7 activity, it is nevertheless unlawful if employees would reasonably construe the rule to prohibit protected activity. Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). Member Hayes would find that an employer can lawfully maintain a rule that allows employees, during the course of an investi- gation of an allegation of harassment or discrimination, to provide information to the employer with the assurance of confidentiality and which provides reasonable protections for the accused. The rule here, however, could reasonably be read to forbid employees from speaking among themselves or to third parties about such complaints and it is therefore overly broad. In its exceptions, the Respondent argues only that its maintenance of the rules was not unlawful because employees talked freely and without restraint about the topics covered by the rules. There is no merit in that argument. “[T]he law is clear that the mere existence of such a rule, even if it is not enforced, constitutes an unlawful interference with employees’ Section 7 rights, in violation of Section 8(a)(1) of the Act.” Cintas Corp., 344 NLRB 943, 946 (2005). In its reply brief, the Re- spondent contends that the rule described in the previous paragraph is “necessary to protect the integrity of the investigatory process.” We shall not consider this contention because it is outside the scope of the of Franco, Jacobs, and Ortega was unlawful. Contrary to the judge, these employees did not lose the protection of the Act when they concertedly refused to work voluntary overtime in protest of the Respondent’s prior offer of overtime to a part-time employee. We therefore reverse the judge and find that the Respondent violated Section 8(a)(1) by warning Jacobs and Ortega and by terminating Franco for engaging in protected concerted activity.2 II. FACTS The Department of Energy (DOE) operates the Waste Isolation Pilot Plant (WIPP) for the disposal of industrial nuclear waste. The DOE contracts with Washington Tru Solution LLC (WTS) to manage the facility. The Re- spondent began to provide security as a subcontractor of WTS at the site in April 2008. It retained the Security Police Officers (SPOs) of the predecessor security sub- contractor. There are approximately 20 SPOs. Their primary du- ties are to control access to the facility and to protect the site and its occupants. The WTS contract also requires that the Respondent must have at least two fire-brigade qualified employees available on each 12-hour shift to support onsite emergency response teams. As of Febru- ary 20, 2009, only 50 percent of the Respondent’s SPOs were fire-brigade certified. The SPOs’ performance of overtime work was volun- tary. The Respondent continued the predecessor’s meth- od of soliciting employees to work voluntary overtime based on a list of cumulative overtime hours worked by each SPO. The employee who had worked the least amount of overtime was given the first opportunity to work overtime. Any employee who declined an over- time offer would move to the bottom of the list. Howev- er, if the Respondent could not reach an employee, or the employee did not respond to a voice mail message re- garding overtime availability, the employee’s position on the list remained unchanged. Therefore, an employee who did not want overtime, but who wanted to retain his or her place on the list, would neither answer the phone nor respond to messages regarding overtime. The Re- spondent’s project manager, Richard De Los Santos, testified that he was not aware of such a practice until after the incident discussed below. General Counsel’s answering brief and is therefore not properly before us. See Sec. 102.46(h) of the Board’s Rules and Regulations; B & B Trucking, 345 NLRB 1 fn. 1 (2005). There are no exceptions to the judge’s finding that the rule in the Respondent’s employee handbook prohibiting employees from copying or disclosing certain company files and records was not unlawful. 2 We shall modify the judge’s recommended Order and notice to provide the appropriate remedies for the violations found. 356 NLRB No. 87 SECURITY WALLS, LLC 597 As of February 16, 2009,3 an SPO was needed for fire-brigade coverage for the night shifts of February 24, 25, and 26. SPO Jeff Ortega volunteered but was in- formed that part-time SPO Julie Ruiz had first choice and would work the overtime. Ruiz was working part time for the Respondent as a second job and would have re- ceived only regular pay rather than the overtime pay that full-time SPOs would earn. On February 23, SPO Or- lando Franco called Ruiz and told her that she “needed to lay off the overtime.” Ruiz told Franco that she was not working overtime on February 24, as she was working her regular job that night. Franco was on speakerphone when he made the call, and Ortega was with him. Franco, Ortega, and SPO Royal Jacobs subsequently discussed their concerns about the overtime offer to Ruiz. In protest of the offer to a part-time SPO at regular pay rates, they agreed that they would not work the up- coming overtime shift and would not answer telephone calls from the Respondent’s officials. At the end of their regular shift in the morning of February 24, Captain Ste- ve Soto asked them if they wanted to work that evening, stating that fire-brigade coverage was needed. The em- ployees told Soto that, if the Respondent did not want to pay overtime and was not going to offer the overtime to full-time employees first, it could find someone else to work the overtime. They also told Soto that the Re- spondent should not even bother calling them regarding the overtime. Nonetheless, the Respondent attempted to telephone all three employees several times during that day and left messages asking them to work overtime. Franco and Jacobs did not respond to the Respondent’s telephone calls and messages about overtime. Ortega tried to respond, intending to tell Soto to stop calling him, and left a message for Soto to return his call. In the end, WTS covered the position with its own personnel. Also on February 24, Ruiz told De Los Santos about the call she received from Franco. Ruiz testified that De Los Santos responded that “he had had enough of Fran- co.” Franco was terminated that evening. His termina- tion notice stated that “[a] complaint has been filed with the Company regarding misconduct on your part. . . . Your incessant complaining and continuous agitation and harassment of your fellow workers has created a negative and hostile working environment.” There is no express reference in the notice to the overtime issue. However, at the hearing in this case, De Los Santos testified that that phone call to Ruiz was the catalyst for the termina- tion but that he discharged Franco for leading a “conspir- acy of the three of them” to compromise the Respond- ent’s contract and sabotage its mission. 3 All dates are in 2009, unless otherwise indicated. Jacobs and Ortega received identical written warnings dated February 27. The warnings stated: On February 24, 2009, several attempts were made to contact you . . . to offer an opportunity to work over- time on that evening shift. Messages were left yet you did not return the call. . . . [W]e are on call to respond to emergency on a 24 hour 7 day per week basis. For- tunately this was not an emergency. However we were unable to meet our contractual obligation of providing Fire Brigade support for that shift as a result of your failure to respond. You were aware that we would need overtime support . . . yet you chose to ignore the calls. . . . We are aware that we cannot require you to work incidental overtime but we do expect the courtesy of a return call to advise us if you are able to work or not . . . . De Los Santos testified that, had the employees re- turned the calls, the Respondent could have explained to WTS that it could not get anyone to work, as the Re- spondent could not require the employees to work over- time. He further testified that he soon rescinded the warning to Ortega after verifying that Ortega had re- turned a call on February 24. He acknowledged that around that same time Jacobs explained the existing overtime procedure to him. De Los Santos testified that Jacobs’ warning was rescinded shortly before the hearing because it was based on an incorrect assumption that there was a policy requiring employees to return tele- phone calls about overtime. III. DISCUSSION The judge found that the SPOs’ conduct on February 23 and 24 was the motivation for the discipline.4 For all three employees, this conduct included the refusal to work overtime and to answer telephone calls or respond to voice mail inquiries about their availability to work overtime on February 24. The judge found that the re- fusal to work overtime was unprotected. In so finding, she apparently relied on two separate theories: (1) that the employees were attempting to unilaterally determine their terms and conditions of employment with respect to overtime assignment;5 and (2) that the employees’ failure to take reasonable precautions to protect the Respondent and the WIPP jobsite from “foreseeable imminent dan- ger” was “indefensible.” We disagree with the judge that 4 The Respondent does not except to this finding. 5 E.g., House of Raeford Farms, 325 NLRB 463 (1998) (employees engaged in unprotected walkout rather than work mandatory overtime on a holiday). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 598 either theory warrants finding the employees’ conduct unprotected in this case.6 A. In finding that the three SPOs were selectively trying to determine their own terms and conditions of employ- ment, the judge critically erred by failing to recognize the significant and undisputed fact that the overtime assign- ments at issue were not mandatory. As stated in St. Barnabas Hospital, 334 NLRB 1000 (2002), enfd. NLRB v. St. Barnabas Hospital, 46 Fed Appx. 32 (2d Cir. 2002), “[t]he Board has long held that a refusal to per- form voluntary work does not constitute an unprotected partial strike.” The judge in that case, citing Dow Chem- ical, 152 NLRB 1150, 1152 (1965), noted that, where an employer permits employees to decide whether they wish to perform the work, it cannot be said that “employees, by refusing to volunteer for work, lost the protection of the Act because they sought to impose on their employer their own conditions of employment.” 334 NLRB at 1012.7 In Jasta Mfg. Co., 246 NLRB 48, 49 (1979), enfd. mem. 634 F.2d 623 (4th Cir. 1980), the Board also found that a respondent violated Section 8(a)(1) by discharging employees who would not work voluntary overtime after the respondent changed the hours of overtime. There, the Board noted that, although the respondent told the employees that they were expected to work the new hours, it never warned them that their failure to work overtime would result in discipline, and therefore the employees could reasonably assume that overtime re- mained voluntary. At the time of the events in this case, it was well estab- lished that overtime was voluntary, and there is no evi- dence that the employees were told on February 24 that the overtime was now mandatory. Significantly, in the warnings issued to Ortega and Jacobs, the Respondent stated that it was aware that it could not require them to 6 The judge erred in finding effectively that Franco, Ortega, and Ja- cobs were not engaged in concerted activity when they refused to work overtime. Their refusal to work voluntary overtime was group action in protest of the Respondent’s overtime offer to Ruiz, and therefore was concerted activity under Sec. 7. 7 The decisions cited by the judge are thus distinguishable from this case. In both House of Raeford Farms, Inc., 325 NLRB 463 (1998), and Bird Engineering, 270 NLRB 1415 (1984), employees were law- fully discharged for leaving work in violation of workplace rules. The Board found that, by doing so, the employees were attempting to set their own terms and conditions of employment. In Chep USA, 345 NLRB 808 (2005), the Board found that an employee was lawfully terminated for violating a work rule. It explicitly declined to decide whether the employee’s conduct was unprotected either because it constituted a partial strike or because it amounted to an attempt by the employee to unilaterally determine working conditions. Id. at 808 fn. 5. work incidental overtime. The warnings were based on the failure of the two employees to return calls to advise the Respondent whether they were able to work. How- ever, De Los Santos acknowledged in his testimony that there was no policy requiring that the employees respond to messages left for them about overtime. In fact, it was an established practice for employees not to respond to messages offering overtime if they wanted to retain their position on the overtime list. In any event, Ortega, Ja- cobs, and Franco had already informed Captain Soto, their supervisor, that they would not work overtime on February 24. Under these facts, the discriminatees were not engaged in an unlawful attempt to set their own terms and conditions of employment. B. In finding that the employees’ conduct was “indefensi- ble,” the judge discusses International Protective Ser- vices, 339 NLRB 701, 702 (2003), relied on by the Re- spondent for the proposition that the test of whether a strike loses statutory protection is whether the employees took “reasonable precautions to protect the employer’s operations from such imminent danger as foreseeably would result from their sudden cessation of work.” Id. We find that the employees’ refusal to work voluntary overtime was not “indefensible” under that standard. First, there was no “sudden cessation of work.” The em- ployees left their regular shift as scheduled on the morn- ing of February 24. As they were leaving, they informed Captain Soto that they would not be available for over- time that evening, and that the Respondent should not bother to call them about working overtime.8 Second, there is no evidence that the employees’ re- fusal to work overtime posed any danger—imminent or otherwise—to the Respondent’s operations. Although the Respondent is required under its subcontract with WTS to have two fire-brigade qualified employees avail- able to cover each shift, the WIPP facility has its own fire department and WTS apparently also had personnel to fill in on February 24 if the Respondent’s SPOs were not available to support those firefighters. Thus, the ab- sence of fire-brigade SPOs did not leave the facility 8 In this respect, the SPOs’ refusal to work overtime differs from the conduct found unprotected in International Protective Services, supra, and Akal Security, Inc., 354 NLRB 122 (2009), adopted in 355 NLRB 598 (2010), cited by the judge. The Board found that the union in International Protective Services abruptly called a strike at a time and in a manner designed to compromise the security of the facility and its occupants. No such evidence exists here. In Akal Security, several guards violated a number of work rules in calling an impromptu meet- ing while on duty. In finding their conduct unprotected, the Board did not find it to be “indefensible,” but simply misconduct consisting of neglect of duty and failing to follow security procedures. The three SPOs here engaged in no such misconduct. SECURITY WALLS, LLC 599 without fire protection. Indeed, the Respondent did not even mention any “imminent danger” to its operations at the time the SPOs announced their intention not to work overtime, or in Franco’s termination letter, or in the warnings to Jacobs and Ortega. Indeed, the Respondent even acknowledged in those warnings that there was no emergency. We need not decide here under what circumstances, if any, employees’ concerted refusal to work voluntary overtime could fairly be characterized as indefensible and therefore unprotected. The facts of this case fail to show that Ortega, Jacobs, and Franco refused voluntary overtime in the face of a foreseeable imminent danger. We therefore find, contrary to the judge, that their con- duct was not “indefensible.” Based on the foregoing, we find that the three employ- ees were engaged in protected concerted activity in fur- therance of their protest of the Respondent’s overtime offer to a part-time SPO when they refused to work over- time and to answer telephone calls from the Respondent about overtime. This conduct was the sole factor moti- vating the Respondent’s issuance of disciplinary warn- ings to Ortega and Jacobs. Accordingly, no further anal- ysis is required in order to find that the warnings for en- gaging in protected concerted activity violated Section 8(a)(1) of the Act.9 C. The legality of Franco’s discharge requires brief addi- tional analysis. The judge found that his February 23 phone call telling Ruiz to “lay off the overtime” was not concerted activity, and further, that Franco’s “purpose was clearly to intimidate her and to discourage her from accepting part-time work with Respondent.” We disa- gree with the judge’s characterization of this call. In- stead, we find that it was part and parcel of the three em- ployees’ concerted overtime assignment protest, and there is no objective basis for finding that the nature of Franco’s statements to Ruiz or the manner in which he made those statements would warrant removal of the Act’s protection. Moreover, even assuming arguendo that Franco’s phone call was unprotected, we would still find his dis- charge unlawful.10 Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 9 See, e.g., Chromalloy Gas Turbine Corp., 331 NLRB 858, 864 (2000), enfd. 262 F.3d 184 (2d Cir. 2001). 10 Member Hayes finds no need to reach the issue of whether the Franco phone call was statutorily protected conduct inasmuch as he agrees with his colleagues that, even if unprotected, the Respondent failed to meet its rebuttal burden of proving that it would have dis- charged Franco in the absence of his protected refusal to work volun- tary overtime. 455 U.S. 989 (1982), the General Counsel is required to prove by a preponderance of the evidence that animus toward the employee’s protected activity was a substan- tial or motivating factor in the adverse employment ac- tion. For the reasons stated above, the General Counsel has met this initial burden by proving that the Respond- ent disciplined the three SPOs, including Franco, for en- gaging in the protected concerted refusal to work volun- tary overtime and to answer telephone calls about over- time in support of their protest of the offer of overtime at regular pay rates to a part-time SPO. Consequently, un- der Wright Line the burden of persuasion shifts to the Respondent to prove that it would have taken the same action even in the absence of this protected activity. It has failed to meet this burden. In this respect, De Los Santos’ hearing testimony effectively admits that the focus of the decision to discharge Franco was on his leadership role in what the Respondent viewed as a “con- spiracy” but what must properly be viewed here as a pro- tected concerted overtime protest. At the very least, the Respondent has failed to show that in the absence of this putative “conspiracy” it would have discharged Franco for his phone call to Ruiz. We therefore conclude that the Respondent violated Section 8(a)(1) of the Act by discharging Franco because he engaged in protected con- certed activity. AMENDED CONCLUSIONS OF LAW Insert the following after the judge’s Conclusion of Law 2. “3. By issuing warnings to employees Jeff Ortega and Royal Jacobs and by terminating employee Orlando Franco, the Respondent violated Section 8(a)(1) of the Act.” AMENDED REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent violated Section 8(a)(1) by issuing warnings to employees Royal Jacobs and Jeff Ortega and by discharging Orlando Franco, we shall or- der that the Respondent remove from its files any refer- ence to the unlawful actions, and to inform the employ- ees that it has done so and that it will not use those ac- tions against them in any way. We shall also order that the Respondent offer Orlando Franco reinstatement and make him whole for any loss of earnings and other bene- fits, from the date of his discharge to the date of a proper offer of reinstatement. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Hori- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 600 zons for the Retarded, 283 NLRB 1173 (1987), com- pounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).11 ORDER The National Labor Relations Board orders that the Respondent, Security Walls, LLC, Carlsbad, New Mexi- co, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or warning employees for engaging in protected concerted activities. (b) Maintaining an overly broad confidentiality rule prohibiting employees from disclosing their wage rates, benefits, promotions, demotions, disciplinary actions, bonuses, and other terms and conditions of employment. (c) Maintaining an overly broad confidentiality rule prohibiting employees from discussing among them- selves their harassment complaints. (d) 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) Within 14 days from the date of this Order, offer Orlando Franco full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make Orlando Franco whole for any loss of earn- ings and other benefits resulting from his discharge, in the manner set forth in the amended remedy section of the decision. (c) Within 14 days from the date of this Order, remove from its files any references to the unlawful discharge of Orlando Franco and the unlawful warnings of Jeff Ortega and Royal Jacobs, and within 3 days thereafter notify the employees in writing that this has been done and that the discharge and warnings will not be used against them in any way. (d) Rescind the language of the confidentiality rule in the Respondent’s Restrictive Covenants Policy prohibit- ing employees from disclosing their salary/wage rates, benefits, promotions, demotions, disciplinary actions, bonuses, and other terms and conditions of employment, 11 We shall also modify the judge’s recommended Order to provide for the electronic distribution of the notice in accord with J. Picini Flooring, 356 NLRB 1 (2010). For the reasons stated in his dissenting opinion in J. Picini Flooring, Member Hayes would not require elec- tronic distribution of the notice. and notify employees in writing that this has been done and that the rule is no longer in force. (e) Rescind the language of the confidentiality rule, which is set forth in the employee handbook, prohibiting employees from discussing among themselves their har- assment complaints, and notify employees in writing that this has been done and that the rule is no longer in force. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Within 14 days after service by the Region, post at its Carlsbad, New Mexico facility, copies of the attached notice marked “Appendix.”12 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily 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. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since October 24, 2008. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region 12 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.” SECURITY WALLS, LLC 601 attesting to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO 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 discharge, issue warnings to, or other- wise discriminate against any of you for engaging in pro- tected concerted activity. WE WILL NOT maintain a rule prohibiting employees from disclosing their salary/wage rates, benefits, promo- tions, demotions, disciplinary actions, bonuses, and other terms and conditions of employment. WE WILL NOT maintain a rule prohibiting employees from discussing their harassment complaints. 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 from the date of the Board’s Order, offer Orlando Franco full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges previously enjoyed. WE WILL make Orlando Franco whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharge of Orlando Franco, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful warnings issued to Jeff Ortega and Royal Jacobs, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the warnings will not be used against them in any way. WE WILL rescind the language of the confidentiality rule, which is set forth in our Restrictive Covenants Poli- cy, prohibiting employees from disclosing their sala- ry/wage rates, benefits, promotions, demotions, discipli- nary actions, bonuses, and other terms and conditions of employment. WE WILL rescind the language of the confidentiality rule, which is set forth in the employee handbook, pro- hibiting employees from discussing their harassment complaints. SECURITY WALLS, LLC Liza Walker-McBride, Esq., for the General Counsel. George Cherpelis, Esq., for the Respondent. DECISION STATEMENT OF THE CASE MARGARET G. BRAKEBUSCH, Administrative Law Judge. This case was tried in Carlsbad, New Mexico, on July 28 and 29, 2009. The charge was filed by Orlando Franco (Franco) on April 24, 2009,1 and an amended complaint issued on July 10, 2009. The amended complaint alleges that during a period from on or about April 2008 through or about February 2009, certain employees of Security Walls, LLC (Respondent) concertedly complained to the Respondent and engaged in protected con- certed activity. The amended complaint further alleges that Respondent violated Section 8(a)(1) of the National Labor Re- lations Act (the Act) by issuing written reprimands to employ- ees Jeff Ortega (Ortega) and Royal Jacobs (Jacobs) and by discharging Orlando Franco (Franco) because its employees engaged in protected concerted activities. At the onset of the hearing, counsel for the General Counsel filed a Motion to Amend the Amended Complaint. The General Counsel’s mo- tion alleges that since October 24, 2008, Respondent has main- tained an overly-broad confidentiality rule in its employee handbook. Pursuant to Section 102.17 of the Board’s Rules and Regulations, the motion was granted.2 Respondent amend- ed its answer to deny the additional allegation. 1 All dates are in 2009, unless otherwise indicated. 2 Counsel for the General Counsel submitted that the allegedly un- lawful language was not known to the General Counsel until Respond- ent produced documentation in response to the General Counsel’s sub- poena. There is no factual dispute that the allegedly unlawful language is contained in Respondent’s employee handbook and its Restrictive Covenants Policy. The only issue is whether the language constitutes an overly-broad confidentiality rule in violation of the Act. Inasmuch as Respondent was given the opportunity to not only present testimoni- al evidence, but to also submit argument in a posthearing brief, the motion was granted over the objection of Respondent. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 602 On the entire record,3 including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a limited liability company, with principal of- fices in Knoxville, Tennessee, and an office and place of busi- ness in Carlsbad, New Mexico, has been engaged in the busi- ness of providing contract security at the Waste Isolation Pilot Program in Carlsbad, New Mexico. During the 12-month peri- od ending April 24, 2009, Respondent performed services val- ued in excess of $50,000 in States other than the State of New Mexico. Respondent admits, and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7). II. ALLEGED UNFAIR LABOR PRACTICES A. Background Approximately 32 to 34 miles southeast of Carlsbad, New Mexico, the U.S. Department of Energy (DOE) operates the Waste Isolation Pilot Plant (WIPP); a facility that is responsible for the safe disposal of nuclear waste. The site is located in the Chihuahuan Desert and is unique because it is the depository of all of the nuclear industry waste in the United States. The DOE contracts with Washington Tru Solutions LLC (WTS) to man- age the WIPP facility. The 30-acre facility covers approxi- mately 16-square miles. The facility is surrounded by an 8- to 10-foot high fence; topped with strands of barbed wire. 1. Respondent’s responsibilities at the WIPP site Respondent is a Tennessee limited liability company with an office and place of business in Carlsbad, New Mexico, where it has contracted with WTS to provide security at the WIPP site since April 1, 2008. In providing security for the entire 30 acres of the facility, Respondent’s security police officers (SPOs) focus primarily on access control for the facility and protection of the facility and its occupants at all times. As a part of this contractual obligation, Respondent is responsible for vehicle controls similar to law enforcement in any small city. Respondent is additionally responsible for pedestrian patrols, access control, and the monitoring of badges for em- ployees. Because the facility is in an isolated area, the facility must be self-sufficient in maintaining its own fire department, ambulance service, and medical staff. Respondent’s contract mandates that its employees provide fire brigade support for the respective emergency response teams in the facility. 3 In conjunction with her posthearing brief, counsel for the General Counsel filed a motion to correct the record; citing five instances in which the transcript contained errors. Respondent filed no opposition to the General Counsel’s motion. I have reviewed the record and find merit to the General Counsel’s motion. Accordingly, the motion is granted and the record is corrected consistent with the General Coun- sel’s motion of September 16, 2009. 2. The duties and responsibilities of the SPOs Respondent’s protective force is composed of five crews; four of which are rotating crews. The fifth crew functions as a relief crew and only works day-shift hours. During the time period in issue, Respondent employed five captains who were salaried and who supervised the respective crews. There were also four sergeants who were paid hourly and who could fill in for a captain in the captain’s absence. Under the terms of the security contract, a minimum of three SPOs were required to be on duty at all times on each shift. Each shift is usually 12 hours in length and no employee is allowed to work more than 16 hours in any shift. Respondent employs approximately 20 SPOs at the site. Their uniforms are similar to those of military officers. While on duty, the SPOs wear tricolor desert camouflage uniforms and armored vests. In addition to carrying radios, handcuffs, and flashlights, the officers also carry a respirators and gas masks in the event of an attack or accidental release of the nu- clear waste. Those SPOs who have qualified for a Q-clearance also carry a sidearm. Under the provisions of the Atomic Ener- gy Act, the SPOs have the authority to arrest violators for committing felonies on the site and for misdemeanors that are witnessed by the officer. Visitors to the facility are under es- cort at all times and are required to view a safety video before they are given authorization to enter the facility. Visitors are not allowed to tour the facility unless the visit has been pre- arranged through the Department of State or the Department of Energy. Richard De Los Santos (De Los Santos) has been Respond- ent’s project manager at the WIPP facility since March 20, 2008. As project manager, De Los Santos is held accountable for managing the activities and duties of the protective force for the WIPP site. Under the terms of WTS’ contract with Re- spondent, WTS has an oversite supervisor who supervises De Los Santos’ actions and recommendations. WTS’ representa- tive, in turn, reports to the DOE’s local field office security specialist who oversees the security activities for the site. Prior to April 2008, the security services for WIPP were contractual- ly provided by Santa Fe Protective Services (Santa Fe). Mark Friend is a staff procurement specialist and contract administrator for the contract between WTS and Respondent. Friend testified that under the terms of WTS’ contract with the DOE, the Government can penalize WTS if the Respondent fails to meet any portion of their contract requirements. Friend explained that such penalty could be triggered by Respondent’s failing to provide the adequate number of SPOs or by failing to meet the fire brigade requirements. Friend went on to explain that under the terms of the contract, Respondent is responsible for providing the site with a protective force 24 hours a day for 365 days of the year. 3. Respondent’s obligations to provide fire brigade coverage Under Respondent’s contract with WTS, Respondent is re- quired to have fire brigade—qualified employees available to cover each shift and to provide coverage 24/7. Specifically, Respondent must provide two SPOs per shift that are fire quali- fied. In order for an officer to qualify for fire brigade coverage, SECURITY WALLS, LLC 603 the officer must have annual fire school training. As of Febru- ary 2009, only 50 percent of Respondent’s SPOs were fire bri- gade certified. If Respondent is unable to provide trained SPOs for fire brigade and emergency services, Respondent’s ability to protect the facility is compromised and Respondent is required to inform WTS that Respondent is unable to meet the contrac- tual requirements. If Respondent is unable to provide the cov- erage, WTS must contact the Eddy County Fire Department and the Lee County Fire Department to request assistance in coverage. The Eddy County Fire Department is located 32 miles from the WIPP site and the Lee County Fire Department is located approximately 40 miles from the facility. If WTS cannot arrange for alternate coverage, the facility is closed down for waste handling operations. 4. SPO pay rates During the time that Santa Fe maintained the contract for se- curity services, the (SPOs) were given a $2-per-hour increase in pay when they received a Q-clearance. A Q-clearance allows the SPO to handle classified information belonging to the DOE, as well as to carry a sidearm. The length of time required for an officer to satisfy the requirements for a Q-clearance can take as much as 6 months to a year depending upon the level of investigation required. When Respondent assumed the contract for the security services at the WIPP, Respondent discontinued the policy of paying the additional $2 an hour for the Q- clearance. Respondent did, however, give all of its hourly em- ployees a $2-an-hour raise when Respondent assumed the con- tract in 2008. B. Respondent’s Alleged Violations Involving Franco, Ortega, and Jacobs The complaint specifically alleges that during the period from in or about April 2008 through in or about February 2009, Franco, Ortega, and Jacobs, and other employees concertedly complained to the Respondent and engaged in protected con- certed activity by complaining about, and discussing among themselves, the rate of pay received by SPOs and other matters relating to wages, hours, and working conditions. The com- plaint further alleges that on or about February 24, Franco, Ortega, and Jacobs engaged in a protected, concerted protest regarding the Respondent’s distribution of overtime hours among full-time and part-time employees of Respondent. 1. Discussions and meetings about equal pay Franco was employed by Respondent as a SPO from April 2008 until February 24, 2009. At the time of his discharge in February 2009, Franco reported to Captain Robert Ybarra (Ybarra). Prior to working for Respondent, Franco had also worked at the WIPP facility for Santa Fe. When Respondent took over the security contract at the WIPP facility, Franco had not as yet received his Q-clearance. Without the Q-clearance, Franco did not carry a sidearm and his pay was $2-an-hour less than armed officers. Franco would have received a $2-an-hour raise upon his receipt of the Q-clearance under the prior pay rate schedule utilized by Santa Fe. In June 2008, Franco re- ceived his Q-clearance. Although Respondent gave all of its hourly employees a $2-an-hour raise when Respondent as- sumed the contract, Respondent did not adopt Santa Fe’s prac- tice of increasing the officers’ pay upon receipt of the Q- clearance. SPOs Jeff Ortega and Naaman Martinez also re- ceived their Q-clearances on or about the same time that Franco received his Q-clearance. Under Respondent’s policy, none of these three officers received a pay increase for their receipt of the Q-clearance. Franco, Ortega, and Martinez discussed meet- ing with Respondent’s owner, Juanita Walls (Walls), to request equal pay for all of the armed officers. After requesting their meeting through the chain of command, a meeting was held on September 25, 2008. Walls and De Los Santos attended the meeting with Franco and Martinez. Franco testified that during the meeting, he asked Walls to “bump up” the pay for the offic- ers who had obtained their Q-clearance since Respondent had assumed the contract in order that all armed officers would receive the same pay. Walls explained that while the $2-an- hour raise for obtaining the Q-clearance had been Santa Fe’s policy, it was not hers. She declined to do so. Franco testified that in January 2009, Captain Robert Ybarra (Ybarra) mentioned a new law involving equal pay for equal work. Franco and Jeff Ortega researched the law online and concluded that Respondent must pay all of the armed officers the same pay rate. Ortega and Franco requested a meeting with De Los Santos to discuss their conclusion. When De Los Santos met with Franco and Ortega in January, he explained that he had already discussed the matter with Walls. De Los Santos relayed Walls explanation that because Respondent utilized a merit determination system for compensation, Respondent was exempt from the “Equal Work for Equal Pay Act.” Franco testified that even though the meeting ended on good terms, he continued to believe that the Equal Pay for Equal Work Act applied to him. Although he independently contacted the De- partment of Labor, he found nothing more to support his theo- ry. Franco also testified that while he mentioned unionization to some other officers, no action was ever taken in this regard. Jeff Ortega did not attend the September 25, 2008 meeting. He did, however, recall meeting with Franco and De Los San- tos in January 2009 to discuss the issue of additional pay for receiving the Q-clearance. In contrast to Franco’s testimony, Ortega recalled that De Los Santos told them that he would discuss the matter with Walls and get back with them. Ortega did not remember if De Los Santos ever got back to them with a response. Ortega had no independent recollection of Franco’s specifically talking with the other employees about getting the $2 raise. Ortega recalled that everyone was “pretty upset” about the change in pay policy and that everyone discussed the issue. 2. Respondent’s procedure for awarding overtime When Respondent took over the security contract in April 2008, Respondent continued the same practice that had been used by Santa Fe in soliciting employees to work overtime. Respondent continued to utilize a record identified as an aug- mentation list. Under the procedure, the employee who has the least amount of accumulated overtime hours on the augmenta- tion list is the first employee to be contacted and offered avail- able overtime. The augmentation list documents the times and dates when employees are offered overtime. If an employee is contacted and declines the available overtime, the employee DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 604 then moves to the bottom of the list to be called for overtime. In other words, if an employee declines the opportunity to work the overtime, the result is the same as if the employee had actu- ally accepted and worked the overtime. If Respondent cannot reach an employee and there is no rejection of the offered over- time, the employee is not charged with the overtime hours and remains at the same place on the overtime list. If there are not sufficient hourly employees available to work overtime and to provide the necessary coverage, captains can cover the shifts if needed. Captain Ybarra testified, however, that captains are not qualified for fire brigade and cannot fill in for SPOs if fire brigade coverage is needed. 3. Respondent’s offer of overtime in February 2009 On February 16, 2009, Sergeant William Smith sent an e- mail to Captain Ybarra and Captain Ray Lopez notifying them that an officer was needed for fire brigade coverage for the night shift for February 24, 25, and 26, 2009. De Los Santos received a copy of the e-mail and testified that Captain Ybarra would have notified his crew that officers were required for this period of time. The notification of overtime availability was confirmed by Ortega’s testimony. He testified that approxi- mately a week before February 24, he learned that overtime was going to be available for this time period. Ortega told Cap- tain Sammy Mendez that he would work the overtime. Mendez came back to him, however, and told him that he would not be needed because part-time employee Julie Ruiz had first choice and she would work the overtime. 4. Julie Ruiz’ work with Respondent Julie Ruiz (Ruiz) was employed full time by Respondent as an SPO from April until September 2008; when she became a full-time firefighter and emergency services technician with WTS. After September 2008, Ruiz continued to work part time for Respondent as an SPO if she were needed. Ruiz estimated, however, that for the period of time from September 2008 until the date of her testimony of July 28, 2009, she only worked four 12-hour shifts for Respondent. Because she was only a part-time employee for Respondent, Ruiz received regular pay rather than overtime pay. Had Respondent’s full-time employ- ees worked those four shifts, they would have received over- time pay. Ruiz recalled that after leaving full-time employment with Respondent, several SPOs made comments about the hours that she was working and the pay that she was receiving. She testified that such comments included, “You must be mak- ing a lot of money, now you are working with WTS, plus you are working part-time over here with Security Walls.” Ruiz was only receiving “training wages” with WTS and she tried to explain to the officers that she was not receiving a lot of mon- ey. Ruiz testified that almost every day she heard similar comments from the SPOs as she cleared security to report to work at the facility. 5. Franco’s contact with Ruiz On February 23, 2009, Ruiz received a telephone call as she was driving home after completing her shift with WTS. When she answered her cell phone, she was unfamiliar with the tele- phone number. Seeing that the area code for the caller was “234,” she thought that it was someone calling her from work and she assumed that she might have forgotten something from work. When she answered, the caller stated: “You know what? I am just calling you to let you know that you need to lay off the overtime.” She asked the caller to identify himself. When Franco4 identified himself, Ruiz asked what he meant by his comment about overtime. Franco repeated, “[L]ay off the over- time.” She testified that he told her that he was not mad at her, however, she needed to layoff the overtime. Ruiz recalled that she responded: Franco, you shouldn’t be calling me. I don’t make up the hours or whatever. You need to talk to De Los Santos or whoever, but don’t call me and tell me not to work or to work. Franco, if you are wanting overtime hours, there is overtime tomorrow night, because I can’t work it. I am already work- ing on my full-time job, and if you want to work that over- time, go ahead and work that one because I can’t work it. Ruiz recalled that Franco again responded that he was just let- ting her know to layoff the overtime. Ruiz told him that she did not want to hear anymore and she hung up. She testified that Franco’s call had been upsetting.5 After hanging up, she ini- tially thought about returning to the facility to confront Franco about his call. She decided, however, to try to calm down and to talk with him when she got to work the next day. She antici- pated that she would see him the next morning as she began her shift and he ended his shift. She did not, however, see Franco during shift turnover the next day. Franco does not deny that he made the telephone call to Ruiz on February 23, 2009. He asserts that his purpose in telephon- ing her was to ask her “not” to take “as much overtime” in or- der that he and other officers could get the overtime. There is no dispute that Franco made the call while he was at work and he did so using a speakerphone. There is also no dispute that Jeff Ortega was present in the room when he made the call. Franco contends that he told Ruiz: “Well, hey, you know, I was just calling to ask you if you know you think you could kind of lay off the overtime so we could get some?” Franco recalled that Ruiz replied: “Well it is not my problem that you guys don’t want to take it.” Franco asserted that Ruiz sounded “kind of angry” and he had assured her: “We are not mad at you.” Franco asserts that he told Ruiz that he was asking her as a “favor” not to take the overtime. He does not dispute that she told him that she was not working the overtime on February 24, 2009, and he could have it. Although Ortega was present during Franco’s telephone call to Ruiz, he did not participate in the conversation. Ortega’s recollection of the conversation was that Franco asked Ruiz if she would “ease up” on the overtime because some of the other officers wanted overtime as well. He also recalled that Ruiz 4 Although Ruiz referred to Franco in her testimony as “Lando,” there is no dispute that Ruiz was referring to Orlando Franco. 5 In an affidavit given to Respondent’s earlier counsel (as distin- guished from Respondent’s counsel at hearing) and dated May 18, 2009, Ruiz stated that she could tell that Franco was very upset and she felt threatened. She added that the telephone call scared and intimidat- ed her. In her testimony at hearing, Ruiz asserted that in giving the affidavit, she had not chosen the words “scared” and “intimidated” and that such words were chosen by the attorney taking the statement. SECURITY WALLS, LLC 605 told Franco that it was not her fault that Respondent called her first all the time and they didn’t want to work. During her lunch hour on February 24, Ruiz contacted De Los Santos in his office. She told De Los Santos that she was there to complain about the telephone call that she had re- ceived. She described her telephone conversation with Franco in detail with De Los Santos and asked De Los Santos to speak with Franco. Ruiz told De Los Santos that it should be his call or the captain’s call as to whether she was going to work the overtime and not Franco’s. Ruiz recalled that after listening to her, De Los Santos responded that he had had enough of Fran- co. Ruiz did not respond and left to go to lunch. A day or two after their conversation, De Los Santos asked Ruiz to put her complaint about Franco in writing. 6. Franco, Jacobs, and Ortega’s response concerning working overtime Over the course of the evening shift on February 23, 2009, Jacobs, Franco, and Ortega discussed their dissatisfaction that Ruiz had been offered overtime before full-time employees were offered overtime. The three employees decided that they would not work the overtime if called, and they would not an- swer their telephone if contacted for overtime. As they were unloading their weapons and preparing to end their shift the following morning, Captain Steve Soto asked Ortega, Franco, and Jacobs if they wanted to work the overtime on the evening shift of February 24, because Ruiz couldn’t work it. Jacobs recalled that Soto also mentioned that officers were needed for fire brigade coverage for the shift in issue. Franco confirmed that the three employees told Soto that if Respondent was not going to offer the overtime to them first, Respondent could find somebody else to do it. Franco, Ortega, and Jacobs all told Soto that they were not going to work the overtime. Both Ja- cobs and Franco specifically recalled that they told Soto at the end of their shift that they were not going to work that night and Respondent should not even bother to call them. Franco recalled in particular that he told Soto: Well, if they want to give away our overtime so they can pay somebody straight time and do it, then we are not going to work it. They don’t want to pay us the overtime and offer it to us first, then, no. We are not doing it. Franco also acknowledged that he knew that Respondent had the obligation to provide fire brigade protection on the shift in question. He further admitted that he understood that their failure to work overtime would cause a problem for Respond- ent. His response was that it was up to Respondent to figure out how they were going to cover the fire brigade requirement. 7. The employees’ rationale for their conduct In testifying about their reason for not working the overtime, Ortega explained that they were upset with Respondent that a part-timer with the Company was getting first choice on over- time. Jacobs also testified that he had “immensely” disagreed with Respondent’s having offered the overtime to a part-time employee before offering it to a full-time employee. Jacobs also told Soto that the employees felt that as a part-time em- ployee, Ruiz should not get overtime. Jacobs also admitted in his testimony that the employees’ decision to not work the overtime was a conspiracy; designed to send a message that a part-time employee receiving straight pay should not take away overtime from full-time employees. Jacobs also acknowledged that at the time that he decided that he would not work the over- time needed on February 24, 2009, he was aware that Ruiz had rescinded her decision to accept the overtime work. Jacobs testified that the fact that Ruiz had first accepted the overtime for Respondent and then declined it in order to work overtime for WTS was a “hard pill to swallow.” He knew that Ruiz would have only received straight time if she had accepted the shift for Respondent and yet she was going to receive approxi- mately $50 an hour for working overtime for WTS. When asked on cross-examination if his decision not to accept the overtime on February 24, 2009, was his way of getting even with Respondent, Jacobs answered in the affirmative. On redi- rect examination, however, he modified his testimony and as- serted that it was more of an attempt to send a message rather than to get even with the Respondent. 8. The employees’ actions after leaving work on the morning of February 24, 2009 Consistent with what the employees told Sergeant Sato on February 24, 2009, Franco, Ortega, and Jacobs did not respond to Respondent’s telephone calls requesting the employees to work overtime. The augmentation log reflects that Respondent telephoned Franco at 8:26 a.m., 2 and 3:15 p.m. Messages were left for Franco for each call. Telephone calls were also made to Jacobs at 8:28 a.m., 2, 3:15, and 7 p.m. The log reflects that messages were left for Jacobs for three of the four calls. The log further documents that Respondent telephoned Ortega at 8:29 a.m., 2, 3:15, and 6:55 p.m.; with messages left for three of the four telephone calls. Neither Franco nor Jacobs returned the calls. Ortega estimated that although he received approxi- mately four to five calls from Respondent after he finished his shift on February 24, 2009, he did not answer any of the calls. He recalled that at approximately 2 or 3 p.m., he telephoned the facility and asked to speak with Soto. When he was unable to speak with Soto, he left a message for Soto to call him. In leav- ing the message for Soto to call him, he did not confirm wheth- er he would or would not come in to the facility to work the overtime. In explaining why he telephoned Soto, Ortega testi- fied: Because the phone kept on ringing and it just got annoying and after the fact that I had told him that morning that don’t even bother calling because I’m not going to work. 9. Franco’s discharge When Franco left work at the end of his shift on Tuesday morning, he was not scheduled to work again until Friday. Franco asserts that after resting a few hours, he drove to Ro- swell, New Mexico, without taking his cell phone. He testified that after returning home at approximately 8 p.m. that same evening, Captain Ybarra came to his house. Ybarra told Franco that De Los Santos wanted to fire him and wanted him to report to the office the following day with all of his equipment and gear. At Ybarra’s suggestion, Franco telephoned De Los San- tos and asked if he could meet with him. De Los Santos agreed. Ybarra accompanied Franco to the meeting with De Los Santos on February 25. Franco testified that De Los Santos told him DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 606 that the corporate office wanted to terminate him because of the complaint involving Ruiz. Franco told De Los Santos that he did not harass Ruiz and that Ortega had been present during the conversation. Franco recalled that De Los Santos said that he would talk with Ortega and then he would check back with the corporate office to see if there was a change of mind. He added, however, that Franco should not get his hopes up. When Fran- co returned the next day, De Los Santos told him that although he had spoken with the corporate office, there had been no change in the decision to terminate him. Prior to his termina- tion, Franco had received no previous disciplinary action. Franco’s letter of termination cites misconduct as the basis for Respondent’s action. The letter includes the following: A complaint has been filed with the Company regarding mis- conduct on your part. This letter is to inform you that we have decided to terminate your employment with Security Walls. Your incessant complaining and continuous agitation and harassment of your fellow workers has created a negative and hostile working environment. Security Walls cannot and will not tolerate this type of behavior. You will return all of your issued equipment to the Canal Street Office. This cost of any missing equipment will be deducted from your final paycheck. De Los Santos testified that Franco was terminated because he compromised Respondent’s contract to provide security services at the WIPP facility. De Los Santos explained that under the contract, Respondent is obligated to provide fire pro- tection and security protection for the WIPP site. De Los San- tos explained that as a result of Franco’s actions, he (De Los Santos) did not have enough people on duty to provide the fire protection that he was required to provide. De Los Santos testi- fied that while the catalyst for the discharge had been Franco’s telephone call to Ruiz, he made the discharge decision because Franco compromised Respondent’s mission and sabotaged Respondent’s ability to meet the contract. 10. Ortega’s warning In a memo dated February 27, 2009, Respondent notified Or- tega that he would receive an official warning for misconduct. The memo included the following language: On February 24, 2009, several attempts were made to contact you, in an effort to offer an opportunity to work overtime on that evening shift. Several messages were left yet you did not return the call. As members of the security department and specifically the Protective Force we are on call to respond to emergencies on a 24 hour seven day per week basis. Fortu- nately this was not an emergency. However, we were not able to meet our contractual obligation of providing Fire Bri- gade support for that shift as a result of your failure to re- spond. You were aware that we would need overtime support prior to leaving the site the morning of the day in question, yet you chose to ignore the calls from the company. We are aware that we cannot require you to work incidental overtime, but we do expect the courtesy of a return call to advise us if you are able to work or not. This conduct is not acceptable and will not be tolerated. You are issued an Official Warning for misconduct which will be entered on your personnel rec- ord. You are also advised that any further misconduct of any type on your part will be cause for termination. Approximately a week after receiving the notice of discipline, Ortega saw De Los Santos and told him that contrary to the information in the memorandum, he had returned the call to Soto to let him know that he was not going to come in to work. In response, De Los Santos told Ortega that he would remove the warning. 11. Jacobs’ warning In a memorandum dated February 27, 2009, Jacobs was in- formed that he was given an official warning because of mis- conduct on February 24, 2009. The memorandum contained identical language to the language contained in the disciplinary memorandum give to Ortega and dated February 27, 2009. Jacobs recalled that when he was called in to De Los Santos’ office to receive the memorandum, De Los Santos told him that Respondent had not been able to provide fire brigade support for the February 24, 2009 evening shift. De Los Santos also referred to Jacobs’ conduct as a “conspiracy.” Jacobs testified that he did not lie to De Los Santos and admitted that it had been a conspiracy because the three officers had agreed that they were not going to work. Jacobs recalled that he told De Los Santos that he didn’t feel that it was appropriate for Ruiz to double-dip and for a part-time employee to receive straight time and deny overtime to full-time officers. 12. Respondent’s change in overtime procedure De Los Santos testified that he disciplined Ortega and Jacobs because he felt that they engaged in a conspiracy with Franco to compromise Respondent’s contract and to sabotage Respond- ent’s mission. De Los Santos explained, however, that after issuing the discipline, Jacobs talked with him about the applica- tion of the augmentation list. After speaking with Jacobs, De Los Santos concluded that it was unfair to charge employees with overtime when they declined overtime from home. By memo dated February 26, 2009, the procedure for the augmen- tation list was modified to allow employees to decline Re- spondent’s offer of overtime from their home without being charged for the overtime. Prior to the hearing in this matter, Respondent rescinded the warning to Jacobs. As discussed above, Respondent had already rescinded the warning to Ortega when Respondent learned that Ortega returned the call to Ser- geant Sato on the evening of February 24, 2009. C. Conclusions Concerning the Discipline Given to Franco, Ortega, and Jacobs 1. The employees’ conduct in issue On the basis of the entire record, it is apparent that the em- ployees’ conduct with respect to the overtime offer on February 24 is the triggering factor in their discipline. Franco’s disci- pline was also prompted in part by his telephone call to Ruiz and his attempt to affect her overtime availability. The record contains testimony that approximately 5 months prior to their discipline, Franco and SPO Naaman Martinez met with Walls and De Los Santos concerning Respondent’s failure to follow the predecessor’s practice of paying an increase for the receipt of the Q-clearance. In January 2009, Franco and Ortega met SECURITY WALLS, LLC 607 with De Los Santos to discuss the issue of equal pay for all armed SPOs. Thus, there is no dispute that both Franco and Ortega voiced concerns to management about Respondent’s pay rate for the SPOs. I do not, however, find these discussions and complaints significant to the discipline that was issued to these three employees. Although Franco, Ortega, and Jacobs may all have participated in discussions and voiced complaints about Respondent’s failure to pay the additional $2 for the Q- clearance, the overall evidence does not support a finding that this conduct was the basis for the alleged unlawful discipline. Although there is no question that Franco was disciplined more severely than Ortega and Jacobs, the record does not support a finding that Respondent did so because Franco complained about working conditions to any greater extent than the other employees. Ortega, in fact, testified that he had no independent recollection of Franco’s discussions with employees about the $2 raise. Ortega recalled that all of the employees were “upset” with the discontinuance of paying the raise and that all of the employees talked about this issue. Additionally, while Franco and Ortega were involved in discussions with De Los Santos and Walls about the issue of equal pay for equal work, there is nothing in the record to show that Respondent discouraged the meetings or the employees’ attempts to raise such issues. Addi- tionally, SPO Martinez participated in the September meeting with Franco, De Los Santos, and Walls without any apparent adverse consequences. Thus, while the record reflects that employees engaged in discussions among themselves and com- plained to management about the Respondent’s failure to pay the $2 differential for the Q-clearance, the overall evidence does not support a finding that the discipline in issue was moti- vated by anything other than the employees’ conduct on Febru- ary 23 and 24, 2009. 2. The parties’ positions Both the General Counsel and the Respondent agree that Section 7 of the Act protects employees who engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection. There is no dispute that em- ployees who protest their terms and conditions of employment are generally protected under the Act. The General Counsel submits that Respondent’s discipline to Franco, Ortega, and Jacobs violates the Act because their conduct was protected by the Act. Respondent maintains, however, that the conduct of these three employees was outside the protection of the Act. Respondent further asserts that even if the employees engaged in any protected activity, the General Counsel failed to show that Respondent took any action against the employees because of any alleged protected activity. 3. Legal analysis a. Existing case authority In its pivotal decision in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board provided a framework for analyzing those cases turning on a question of the employer’s motivation in taking adverse action against employees. Under Wright Line, the General Counsel must persuade that the employee’s protected activity was a substantial or motivating factor in the challenged employer decision. If the General Counsel meets this prima facie requirement, the burden then shifts to the em- ployer to prove its affirmative defense that it would have taken the same action even if the employee(s) had not engaged in protected concerted activity. Manno Electric, 321 NLRB 278, 280 fn. 12 (1996). In their posthearing briefs, both parties address the facts of this case in relation to the Wright Line analysis. While it does not appear that either party is arguing that the facts of this case should be analyzed solely on the basis of Wright Line, the par- ties have nevertheless addressed the application of the Wright Line analysis as an alternative analysis. As discussed above, the record is clear that Respondent terminated Franco and is- sued warnings to Ortega and Franco because of their conduct on February 23 and 24, 2009. De Los Santos acknowledges that he imposed the discipline because of what he perceived to be a conspiracy to compromise Respondent’s contract and to sabotage Respondent’s mission. Counsel for the General Counsel, however, maintains that what the Respondent per- ceived to be a conspiracy was, in fact, protected concerted ac- tivity. Thus, while the parties dispute whether the employees’ conduct was protected, there is no real issue with respect to the conduct for which the employees were disciplined. According- ly, inasmuch as Wright Line is appropriately used in cases al- leging violations where the respondent’s motivation for taking the allegedly unlawful action is disputed, the analysis is not applicable in this instance. Saia Motor Freight Line, 333 NLRB 784 (2001); Felix Industries, 331 NLRB 144, 146 (2000), enfd. 151 F.3d 1050 (D.C. Cir. 2000). It is well established that an employer may not discriminate against employees who protest their terms and conditions of employment. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962). Such conduct by an employer violates the Act, irre- spective of the motive. Falls River Savings Bank, 247 NLRB 631 fn. 3 (1980). In its decision in Washington Aluminum, the Court also pointed out that Section 7 does not protect all con- certed activities. The normal categories of unprotected conduct include activities that are unlawful, violent, or in breach of contract. In its analysis, the Court also excluded the protection of the Act for concerted activities that were characterized as “indefensible” because they were found to show a disloyalty to the workers’ employer. Ibid at 17. In arguing that these employees engaged in unprotected con- duct, Respondent cites the Court’s earlier decision in NLRB v. Electrical Workers Local 1229, 346 U.S. 464, 472 (1953), in which the Court noted that Section 7 does not immunize an employee from discharge for acts of disloyalty or misconduct merely because those acts were associated with protected activ- ity. Respondent argues that these employees engaged in a “concerted refusal to work fully knowing that their conduct would compromise the ability of Respondent to provide the required security service to the WIPP site.” Respondent asserts that in doing so, these employees failed to take reasonable pre- cautions to protect both Respondent and the WIPP site from “foreseeable imminent danger” and thus their conduct was “indefensible” and not entitled to the protection of Section 7 of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 608 In the alternative, Respondent also argues that even if the employees engaged in protected activity, the General Counsel has not met its burden under the analytical framework of Wright Line. Citing the Board’s decisions in Jordan Marsch Stores Corp., 317 NLRB 460 (1995), and GHR Energy Corp., 294 NLRB 1011, 1012–1013 (1989), affd. 924 F.2d 1055 (5th Cir. 1991), Respondent asserts that an employer “must only show that it reasonably believed” that the employee engaged in conduct warranting the adverse employment action to establish its affirmative defense. In both cases cited by Respondent, the Board affirmed the judge in finding that while the General Counsel had established a prima facie case of discriminatory discipline, the employer had “reasonably believed” that the employees in issue had engaged in serious misconduct. In GHR Energy Corp., supra, the employer reasonably believed that the suspended employees had engaged in serious conduct endangering other employees and the plant itself. In Jordan Marsch Stores Corp, supra, the employer reasonably believed that the employee in issue committed a fraud that would have been grounds for discipline under the employer’s policies. Although Respondent asserts that it is relieved of liability because it “reasonably believed” that the discriminatees were engaging in misconduct that warranted discipline, the General Counsel argues that the Supreme Court’s decision in NLRB v. Burnup & Sims6 provides the appropriate analytical analysis. In Burnup & Sims, the Supreme Court affirmed the Board’s rule that an employer violates Section 8(a)(1) of the Act by discharging or disciplining an employee based on its good- faith, but mistaken belief, that the employee engaged in mis- conduct in the course of protected activity. As the Board reit- erated in White Electrical Construction, Inc, 345 NLRB 1095 (2005), Burnup & Sims applies when an employer disciplines an employee for allegedly engaging in misconduct in the course of protected activity. In that instance, a good-faith belief that the employees engaged in misconduct is not a defense if the General Counsel proves that the employees did not, in fact, engage in the misconduct. In White Electrical, supra, the Board went on to point out however, that the Burnup & Sims rationale does not apply when employees are not engaged in protected activity. Thus, an employer does not violate the Act by disci- plining an employee based on a mistaken belief that they en- gaged in misconduct if their actions did not arise out of any protected activity. In other words, under the Burnup & Sims analysis, once the respondent has established that it had a good- faith belief that the employee engaged in misconduct, the bur- den shifts back to the General Counsel to prove by a prepon- derance of the evidence that that the employee did not, in fact, engage in the misconduct. See Marshall Engineered Products Co., 351 NLRB 767, 768 (2007); Pepsi-Cola Co., 330 NLRB 474, 475 (2000). b. Application of the legal analysis Although there is no real dispute as to the basis for Franco’s discharge and the warnings issued to Jacobs and Ortega, the critical question is whether Franco, Jacobs, and Ortega engaged in protected concerted activity when they conspired to become 6 379 U.S. 21 (1964). unavailable for needed overtime and when Franco telephoned Ruiz to discourage her from working overtime. In deciding Yuker Construction Co., 335 NLRB 1072, 1073 (2001), the Board dealt with a situation in which the employer terminated two over-the-road drivers for statements made dur- ing a Nextel phone conversation while they were on the job. In the course of the conversation, the drivers talked about the em- ployer’s upcoming work available to them, their opinion of the rate of pay that the employer would offer, whether they would work at that rate, and the existence of other jobs available. The employer overheard their conversation on the Nextel phone and mistakenly concluded that they were actively seeking other employment while on the employer’s payroll. The Board af- firmed the judge in finding that the employees’ discussion of their plans in searching for alternative work during the winter months does not constitute concerted activity within the mean- ing of the Act. Citing the Board’s decision in Meyers Indus- tries (Meyers II), 281 NLRB 882, 887 (1986), the judge specif- ically noted that there was no evidence that their talk was “en- gaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interests of the employees.” There is no real dispute that Franco, Ortega, and Jacobs purposely withdrew their availabil- ity for overtime because they did not like the fact that Respond- ent offered overtime to a part-time employee rather than mak- ing it available for full-time employees. Although the availa- bility of overtime work would certainly be of an interest to all employees, there was no evidence that they did so for the pur- pose of “initiating or preparing for group action” as envisioned by Meyers II or as discussed in Yuker Construction. Based upon their own testimony and the undisputed facts, it appears that they took the action they did to teach Respondent a lesson for making the overtime available to Ruiz before offering it to them or simply to retaliate against Respondent for having done so. Additionally, I also note that Franco’s telephone call to Ruiz could not be characterized as initiating or preparing for group action. Although Franco and Ortega attempted to char- acterize the telephone call as a friendly request to Ruiz, the purpose was clearly to intimidate her and to discourage her from accepting part-time work with Respondent. Respondent argues that Franco specifically testified that he never raised any concerns relating to the overtime policy or the augmentation list with De Los Santos prior to February 24, 2009. While I note that an employee’s failure to make any specific demand or to notify the employer of the reasons for a concerted action does not render the conduct unprotected,7 Franco’s failure to do so is a factor in concluding that these employees’ conduct was more akin to retaliation rather than true protected concerted activity. In his brief, counsel for Respondent cites a number of cases in which the various courts have found partial strikes and in- termittent work stoppages to be unprotected. Overall, I don’t find the circumstances of this case to be analogous to a partial strike or intermittent work stoppage. Respondent does not allege that these three employees failed to report for scheduled work or allege that these employees left work during a sched- 7 Eaton Warehousing Co., 297 NLRB 958 fn. 3 (1990). SECURITY WALLS, LLC 609 uled shift. Clearly, the conduct in issue is their deliberate deci- sion to ignore Respondent’s need for overtime coverage on February 24, with the knowledge of the potential consequences affecting Respondent and the government facility. Respondent also cites the Board’s decision in International Protective Services,8 for the proposition that concerted activity is indefensible where employees fail to take “reasonable pre- cautions” to protect the employer’s operations from foreseeable imminent danger. The circumstances of International Protec- tive Services involved the employees of a security service that had contracted with the Government Services Administration to provide security in Alaska’s Federal buildings. The Board concluded that these employees’ strike at a time of heightened security concerns was not protected by the Act because the strike exposed the Federal buildings and their occupants to foreseeable danger. In a very recent decision, the Board found that employees’ lost the protection of the Act in somewhat similar circumstanc- es. In AKAL Security, Inc., 354 NLRB 122, (2009), the re- spondent employer contracted with the United States Marshals Service (USMS) to provide security services at Federal court- houses. Without supervisory permission, two court security officers held a 30-minute meeting with other employees during working time to confront another court security officer about his performance problems which they believed to potentially jeopardize the safety of court security officers. The employer concluded that the two officers not only harassed the employee who had been confronted, but the officers also neglected their duties during the meeting. While the respondent employer recommended that the employees be suspended, the USMS wanted the officers removed from working under its contract. In applying Burnup & Sims, supra, the judge found the purpose of the meeting was protected and found a violation of Section 8(a)(1) of the Act. The Board, however, found merit to the employer’s argument that the employees’ conduct lost the pro- tection of the Act. The Board noted that the respondent em- ployer determined that the employees created a security risk by convening the meeting during operational hours at a location in the courthouse where they could not fully and effectively moni- tor the courthouse. The Board found that the employer had a good-faith belief that the employees engaged in such conduct and the General Counsel failed to prove that the misconduct did not occur. Respondent presented both De Los Santos and WTU’s con- tract administrator, Mark Friend, to testify about Respondent’s requirement to have trained SPOs on fire brigade duty on the evening of February 24, 2009. Friend testified without contra- diction that if Respondent had been unable to provide fire bri- gade services for that evening shift, WTU would have had to depend upon backup services from county services that were located 32 to 40 miles away from the facility. Franco admitted that he was aware that Respondent had the obligation to pro- vide fire brigade protection on the shift in question and he knew that the unavailability of SPOs for overtime was going to cause a problem for Respondent. Respondent argues that the discrim- inatees decided to engage in a concerted refusal to work know- 8 339 NLRB 701, 702 (2003). ing that their conduct would compromise the ability of Re- spondent to provide the required security services to the WIPP site. Respondent argues that in doing so, the discriminatees failed to take reasonable precautions to protect both Respond- ent and the WIPP site from “foreseeable imminent danger.” Respondent’s argument has merit. Jacobs confirmed that not only did Soto tell them that Re- spondent needed overtime coverage, but Soto specifically told them that fire brigade coverage was needed. When Jacobs was given his discipline, he admitted to De Los Santos that their conduct on February 24, 2009, had been a conspiracy. He fully acknowledged that the three employees conspired and agreed that they were not going to work. It is undisputed that these three employees did not want Re- spondent to offer overtime to Ruiz or any other part-time em- ployee. They believed that the overtime should have been of- fered to them before offering it to part-time employees. After Franco and Ortega’s call to Ruiz, Franco, Ortega, and Jacobs then agreed upon a plan to become unavailable for the coverage needed for February 24, 2009. Admittedly, they knew that in doing so, Respondent would be placed in a difficult position with WTS. Sergeant Ybarra credibly testified that it was not just a matter of these employees not returning calls, but the fact that they knew that they were the only SPOs who were availa- ble for the shift. Ybarra further testified that in his 22 years of experience in working for both Santa Fe and for Respondent, he had never known of a situation in which SPOs told a captain to not bother calling them because they were not coming in to work. Contract Administrator Mark Friend also testified that the overtime incident in February 2009 was the first time that he had been aware that Respondent had not been able to pro- vide the requisite fire brigade services under the contract, forc- ing WTS to secure the services elsewhere. Based upon the above, I do not find that Respondent disci- plined these employees for conduct that was protected by the Act. Accordingly, by attempting to affect how overtime would be offered to employees, the actions of these employees were nothing more than their attempt to unilaterally determine their terms and conditions of employment, conduct that is not pro- tected by the Act. Chep USA & Anthony McGlothian, 345 NLRB 808, 817 (2005); House of Raeford Farms, Inc., 325 NLRB 463 (1998); Bird Engineering, 270 NLRB 1415 (1984). Therefore, I do not find that Respondent violated Section 8(a)(1) of the Act by terminating Franco and by issuing disci- plinary notices to Ortega and Jacobs. D. Respondent’s Confidentiality Rules At the outset of the hearing in this matter, counsel for the General Counsel moved to amend the complaint to allege that since October 24, 2008, Respondent has maintained an overly- broad confidentiality rule in violation of the Act. As a basis for this allegation, the General Counsel relies upon specific word- ing in Respondent’s employee handbook and in its Restrictive Covenants Policy. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 610 Page 8 of the Respondent’s employee handbook provides: Confidentiality In cases involving a report of harassment or discrimination, all reasonable efforts will be made to protect the privacy of the individuals involved. In many cases, however, Security Walls’ duty to investigate and remedy harassment makes ab- solute confidentiality impossible. Security Walls will try to limit the sharing of confidential information with employees on a “need to know” basis. Employees who assist in an inves- tigation are required to maintain the confidentiality of all in- formation learned or provided. Violation of confidentiality will result in disciplinary action. Page 11 of the Respondent’s employee handbook provides: Confidentiality All records and files of the Company are property of the Company and considered confidential. No employee is au- thorized to copy or disclose any file or record. Confidential information includes all letters or any other information con- cerning transactions with customer, customer lists, payroll or personnel records of past or present employees, financial rec- ords of the Company, all records pertaining to purchases from vendors or suppliers, correspondence and agreements with manufacturers or distributors and documents concerning op- erating procedures of the Company. All telephone calls, let- ters, or other requests for information about current or former employee should be immediately directed to the proper mem- bers of Security Walls’ management. In the motion, the General Counsel also points to page 2 of the Restrictive Covenant that contains a directive of what an em- ployee or terminated employee is prohibited to use or disclose. The two areas of prohibited disclosure upon which the General Counsel relies are identified as: (1) Insurance and benefits cost formulas and payment pre- miums (2) Personal and/or sensitive information regarding any Se- curity Walls, LLC employee with particular emphasis on sala- ry/hourly wage rate, benefits, promotions demotions, discipli- nary actions, bonuses, or other actions which are clearly the authority of the Human Resource Department. 1. The General Counsel’s argument Counsel for the General Counsel argues that the Board and courts have long recognized the importance of communication among employees regarding their wages, hours, and other terms and conditions of employment.9 The General Counsel specifi- cally points to the Board’s decision in NLS Group, 352 NLRB 744, 745 (2008), where the Board reiterated its standard for determining whether a work rule violates Section 7 of the Act. Following its earlier decision in Lutheran Heritage Village- Livonia, 343 NLRB 646 (2004), the Board in NLS Group reit- erated that even if a rule does not explicitly restrict Section 7 rights, the rule is nonetheless unlawful if employees would reasonably construe the language of the rule to prohibit Section 7 activity. 9 Central Hardware Co. v. NLRB, 407 U.S. 539, 542–543 (1972). 2. Conclusions concerning Respondent’s confidentiality rules The Board has cautioned, however, that a rule should be giv- en a “reasonable reading” and that particular phrases in a rule should not be read in isolation or presumed to have improper interference with Section 7 rights. Guardsmark, LLC, 344 NLRB 809 (2005); LaFayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). In LaFayette Park, the confidentiality rule in issue prohibited employees from divulging hotel-private information to employees or other indi- viduals or entities that were not authorized to receive that in- formation. The Board opined that employees would not rea- sonably read this rule as prohibiting a discussion of wages and working conditions. The Board concluded that employees would reasonably understand that this rule was created to pro- tect the employer’s legitimate interest in the confidentiality of its private information; such as guest information, trade secrets, and contracts with suppliers. Thus, the Board concluded that the rule did not interfere with employee Section 7 rights, even though it reasonably addressed and protected the employer’s interest in confidentiality. In a later case10 in which the Board applied the same rationale as LaFayette Park, the confidentiali- ty rule in issue simply stated “company business and docu- ments are confidential. Disclosure of such information is pro- hibited.” Applying the rationale of LaFayette Park, the Board concluded that employees would reasonably understand from the language of the confidentiality provision that it was de- signed to protect the employer’s legitimate interest in maintain- ing the confidentiality of its private business information, not to prohibit discussion of wages or working conditions. Thus, the central question appears to be whether employees would read a confidentiality rule as prohibiting protected em- ployee communications about terms and conditions of em- ployment or whether employees would recognize “the legiti- mate business reasons” for which such a rule is promulgated and would not believe that it reaches Section 7 activity. LaFa- yette Park, supra at 827. Clearly, the way in which employees may reasonably construe the language is pivotal. In a 200411 case, the employees of a casino were cautioned that they may be required to deal with information of an ex- tremely confidential nature and that it was essential that such information not leave the respective employer’s department by document or verbally other than as required by a job function. Specifically included in the prohibited information was infor- mation concerning salary grades, pay increases, as well as dis- ciplinary information. The confidentiality rule went on to cau- tion that information should be provided to “employees outside the department” or to those outside the company only when a valid “need to know” was shown to exist. The rule also cau- tioned that personal information concerning individual employ- ees should not be discussed with members of an employee’s own group. In finding that the confidentiality rule infringed upon employees’ Section 7 rights, the Board noted that the employer’s confidentiality rule left nothing for the employees to construe because it specifically defined confidential infor- 10 K-Mart, 330 NLRB 263 (1999). 11 Double Eagle Hotel & Casino, 341 NLRB, 112, 115 (2004). SECURITY WALLS, LLC 611 mation as including information concerning salary, disciplinary information, etc.; falling clearly within the realm of wages and working conditions. Respondent’s Restrictive Covenants Policy provides that it is in the business of “providing technical counter-surveillance measures, security police officers, and other security-related services to governmental, public, and private persons and enti- ties.” Respondent maintains that because of the nature of its business, it is charged with maintaining the confidentiality of information about its clients’ trade secrets. The policy contin- ues by asserting that employees may become aware of, or ob- tain information, that relates to its trade secrets or those of Re- spondent’s client. Although the policy devotes a good deal of attention to the restrictions that apply after an employee leaves his or her employment with Respondent, the policy also refer- ences the restrictions imposed in disclosing confidential infor- mation during the employee’s employment. As referenced above, confidential information is specifically defined to in- clude “personal and/or sensitive information regarding any employee with particular emphasis on salary/hourly wage rate, benefits, promotions, demotions, disciplinary actions, bonuses, or other actions which are clearly the authority of the Human Resources Department.” There is nothing in the policy that gives employees any assurances that the broad restrictions iden- tified in the policy carve out or exclude discussions that would otherwise be protected by Section 7 of the Act. More specifi- cally, there is nothing in the policy that clearly explains that the restrictions apply only to “legitimate business concerns” and not to their discussion of wages and other terms of employment that is protected by the Act. Where there is an unqualified pro- hibition, the rule may reasonably be construed by employees to restrict discussion of wages and other terms and conditions of employment with their fellow employees. Cintas Corp., 344 NLRB 943 (2005). In its 2006 decision in Biggs Food, 347 NLRB 425, 426 (2006), the Board adopted the judge’s analysis and relied upon Cintas Corp. in finding a confidentiality rule as unlawfully overbroad. The Board concluded that employees could reasonably understand the rule, which prohibited disclo- sure of, among other things, salaries to “anyone outside the company” as prohibiting discussion of salaries with union rep- resentatives. Member Kirsanow noted that while he appreciated that the respondent and employers generally have a legitimate interest in safeguarding their confidential information from disclosure to competitors, nothing in the Board’s order preclud- ed the respondent from modifying its confidentiality policy “so that its interests are protected and the employees’ Section 7 rights are not violated.”12 Member Kirsanow’s suggestion is equally applicable to Respondent’s Restrictive Covenant Poli- cy. The policy provides for the recovery of damages from an employee in the event of a breach of the covenant. Although there is no evidence that the Respondent has used the policy as a basis for discipline or legal recourse against an employee, there remains, however, a written prohibition and a clear warn- ing of what will occur if an employee or former employee 12 Citing language from Double Eagle Hotel & Casino v. NLRB, 414 F.3d 1249, 1260 (10th Cir. 2005). breaches the covenant. Although I have no basis to conclude that Respondent prepared this document other than to safeguard the confidential information of its client and to protect itself from competitors, the language does not contain a qualified prohibition and employees could easily construe the policy to prohibit their discussion of wages and other terms and condi- tions of employment as protected by the Act. Accordingly, I find the language in issue in the Restrictive Covenants Policy to be violative of the Act as alleged by the General Counsel. The General Counsel also references the wording of the con- fidentiality rule set forth at page 8 of Respondent’s employee handbook. The wording asserts employees who assist in an investigation of harassment or discrimination claims are re- quired to maintain the confidentiality of all information learned or provided. The rule provides that a violation of confidentiali- ty will result in disciplinary action. Counsel for the General Counsel submits that an objective reading of such a rule re- quires the conclusion that employees are prohibited from dis- cussing with each other acts of discrimination and other types of harassment in the workplace once Respondent has begun an investigation. De Los Santos testified that Respondent main- tained this rule because of a need to protect both the victim and the accused in a sexual harassment complaint. He asserted that the rule did not preclude the victim or the alleged perpetrator from discussing the matter. The rule, however, specifically states that employees who assist in an investigation are required to maintain the confidentiality of all information learned or provided and a violation of confidentiality will result in disci- plinary action. There is no caveat, however, giving employees any assurances that this rule does not preclude their own dis- cussion among themselves of sexual harassment concerns or issues. The Board has found that a confidentiality rule prohibit- ing employees from discussing their sexual harassment com- plaints among themselves is violative of Section 8(a)(1) of the Act. Phoenix Transit System, 337 NLRB 510 (2002). There are instances in which the Board has used a balancing test in addressing an employer’s asserted justification for a broad confidentiality policy. In Caesar’s Palace, 336 NLRB 271 (2001), the employer imposed a confidentiality rule during an investigation of alleged illegal drug activity in the work place. Because the investigation involved allegations of a man- agement coverup and possible management retaliation, as well as threats of violence, the employer’s investigating officials attempted to impose a confidentiality rule to ensure that wit- nesses were not in risk of danger, that evidence was not de- stroyed, and that testimony was not fabricated. In that instance, the Board found that the employer established a substantial and legitimate business justification for its rule and under the cir- cumstances of the case; the justification outweighed the rule’s infringement on employee rights. Id. at 272. Such is not the circumstance in this matter. In this instance, employees could easily construe the wording of Respondent’s confidentiality rule as prohibiting discussions as guaranteed by their rights under Section 7 of the Act. There is no evidence of any extenu- ating circumstances that provide a substantial and legitimate business justification for the existing rule. Accordingly, I find the confidentiality language found on page 8 of the employee handbook to violate Section 8(a)(1) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 612 Counsel for the General Counsel also maintains that employ- ees would reasonably construe the rules maintained at page 11 of the employee handbook as restricting their right to talk with each other about various terms and conditions of employment. I disagree. The section entitled “Confidentiality” on page 11 of the employee handbook deals with Respondent’s records and files. The rule precludes an employees’ copying or disclosing certain files or records relating to transactions with customers, customer lists, payroll or personnel records of past or present employees, financial records of the Company, all records per- taining to purchases from vendors or suppliers, correspondence and agreements with manufacturers or distributors and docu- ments concerning operating procedures of the Company. While I note that payroll or personnel records are included in this list of documents prohibited from disclosure, an objective reading of this rule would indicate that the rule is directed toward the confidentiality of Respondent’s business records and not to the prohibition of employees’ Section 7 rights. It is not apparent that employees would construe this rule to preclude their ability to discuss among themselves matters relating to wages and terms and conditions of employment. According, I do not find the language on page 11 of the employee handbook violative of the Act. CONCLUSIONS OF LAW 1. Security Walls, LLC, Respondent, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By maintaining overly broad confidentiality rules prohibit- ing employees from discussing wage rates, benefits, promo- tions, demotions, disciplinary actions, bonuses, or other terms and conditions of employment, Respondent violated Section 8(a)(1) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. [Recommended Order omitted from publication.]