DirecTV U.S. DirecTV Holdings LLC

DIRECTV U.S. DIRECTTV HOLDINGS 545 359 NLRB No. 54 DirecTV U.S. DirecTV Holdings, LLC and Interna- tional Association of Machinists and Aerospace Workers, District Lodge 947, AFL–CIO. Case 21–CA–039546 January 25, 2013 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND BLOCK On December 13, 2011, Administrative Law Gerald A. Wacknov issued the attached decision. The Respondent filed exceptions and a supporting brief, the Acting Gen- eral Counsel filed an answering brief, and the Respond- ent filed a reply brief. The Acting General Counsel filed limited exceptions and a supporting brief and the Charg- ing Party filed cross-exceptions and a supporting brief. The Respondent filed an answering brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings,1 and conclusions and to adopt the recommended Order as modified and set forth in full below. In this case, we address allegations that the Respond- ent maintained five unlawful work rules. We agree with the judge that four of the rules are unlawful, and we fur- ther agree that the Respondent did not repudiate them. We discuss each of the rules below, along with the ap- propriate remedy.2 In addition, we address the judge’s finding, with which we agree, that the Respondent un- lawfully discharged employee Gregory Edmonds be- cause of his union activity. A. Work Rules The judge found that the four rules at issue—two pro- visions set forth in the Respondent’s employee handbook and two corporate policies maintained by the Respondent on its intranet system—were unlawful because employ- ees would reasonably construe them as prohibiting Sec- tion 7 activity. See Hyundai America Shipping Agency, 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 We agree with the judge that the work rule entitled, “Use of Com- pany Systems, Equipment, and Resources,” is lawful under the Board’s decision in Register-Guard, 351 NLRB 1110 (2007), enfd. in part sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). The Acting General Counsel, joined by the Charging Party, asks the Board to revisit its decision in Register-Guard. Chairman Pearce and Member Griffin question whether Register-Guard was correctly decided, but they decline to address the issue in this case. 357 NLRB 860, 861 (2011); Lutheran Heritage Village- Livonia, 343 NLRB 646, 647 (2004).3 The policies post- ed on the Respondent’s intranet system are applicable to all its employees nationwide, while the handbook provi- sions at issue here are applicable to the Respondent’s home services employees (installers) who work at more than 110 locations nationwide. Although the Respondent excepts to the judge’s findings that the rules were unlaw- ful, it has presented no alternative construction or inter- pretation of the rules, focusing instead on its purported repudiation of them. As explained below, we agree with the judge that the rules were unlawful and that the Re- spondent failed to repudiate them. 1. Restrictions on employee communication with the media The Respondent’s handbook provision section 3.4, en- titled, “Communications and Representing DIRECTV,” expressly instructs employees, “Do not contact the me- dia.”4 It is settled that Section 7 of the Act encompasses employee communications about labor disputes with newspaper reporters. See Valley Hospital Medical Cen- ter, 351 NLRB 1250, 1252 (2007), enfd. sub nom. Neva- da Service Employees, Local 1107 v. NLRB, 358 Fed. Appx. 783 (9th Cir. 2009); Hacienda de Salud-Espanola, 317 NLRB 962, 966 (1995). Employees would reasona- bly construe the unequivocal language in the Respond- ent’s rule as prohibiting any and all such protected com- munications to the media regarding a labor dispute. In accord with precedent, we regard it as significant that the rule makes no attempt to distinguish unprotected com- munications, such as statements that are maliciously false, from those that are protected.5 See Valley Hospital Medical Center, 351 NLRB at 1252–1253; accord: Cintas Corp. v. NLRB, 482 F.3d 463, 469 (D.C. Cir. 3 The Board does not read particular phrases in a rule in isolation from the overall rule language. See Lutheran Heritage Village-Livonia, supra at 646. We have considered the overall language of the rules at issue. 4 The rule provides, in pertinent part: “Communications and Repre- senting DIRECTV. To ensure the company presents a united, con- sistent voice to a variety of audiences, these are some of your responsi- bilities related to communications . . . . Do not contact the media, and direct all media inquiries to the Home Services Communications de- partment. . . . If law enforcement wants to interview or obtain infor- mation regarding a DIRECTV employee, whether in person or by tele- phone/email, the employee should contact the Security department in El Segundo, Calif., who will handle contact with law enforcement agen- cies and any needed coordination with DIRECTV departments.” The full text of the rule is set forth in Appendix D to this decision. 5 For example, the rule addresses permissible employee engagement in “political activities” but lacks any such clarification or reference to employee engagement in Sec. 7 activity. Nor is clarification offered to employees by the rule as a whole. It broadly addresses communica- tions but remains silent on whether an employee is impermissibly rep- resenting DIRECTV under the rule when engaged in Sec. 7 activity. 546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2007) (finding policy unlawful where “the Company has made no effort in its rule to distinguish [S]ection 7 pro- tected behavior from violations of company policy”). The Board has consistently found similar rules barring employee media communications to be overbroad and unlawful. E.g., HTH Corp., 356 NLRB 1397, 1398, 1421 (2011), enfd. 693 F.3d 1051 (9th Cir. 2012); Trump Marina Casino Resort, 355 NLRB 585 (2010) (incorpo- rating by reference 354 NLRB 1027 (2009)), enfd. 435 Fed. Appx. 1 (D.C. Cir. 2011); Leather Center, Inc., 312 NLRB 521, 525, 528 (1993). Accordingly, we agree with the judge that this part of the Respondent’s hand- book provision 3.4 is unlawful. For similar reasons, we find that the Respondent’s cor- porate policy entitled, “Public Relations” is unlawful. The policy states, in relevant part “Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations.”6 As the Board explained in Brunswick Corp., “any rule that re- quires employees to secure permission from their em- ployer as a precondition to engaging in protected con- certed activity on an employee’s free time and in non- work areas is unlawful.” Id., 282 NLRB 794, 795 (1987) (citing Enterprise Products Co., 265 NLRB 544, 554 (1982)); accord: Trump Marina Casino, 355 NLRB at 585 (incorporating by reference 354 NLRB at 1029 fn. 3); Teletech Holdings, Inc., 333 NLRB 402, 403 (2001). As explained above, Section 7 protects employee com- munications with the media concerning labor disputes. The Respondent’s preapproval requirement expressly covers any contact with the media, and thus would rea- sonably lead employees to conclude that it applies to protected communications concerning labor disputes. Indeed, the policy’s statement that its purpose is to en- sure a “consistent message” would reasonably be con- strued as barring expression to the media of any employ- ee disagreement with the Respondent over wages, hours, and other terms and conditions of employment.7 2. Restriction on employee communication with NLRB agents As noted above at footnote 4, the Respondent’s hand- book provision section 3.4 provides, “If law enforcement wants to interview or obtain information regarding a 6 The policy provides in full: “Public Relations: Employees must direct all media inquiries to a member of the Public Relations team, without exception. Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations. These rules are in place to ensure that the company communicat[e]s a consistent message and to ensure that proprietary information is not released.” 7 The broad language of the rule precludes any reasonable inference by employees that the preauthorization requirement is limited to propri- etary information. DIRECTV employee, whether in person or by tele- phone/email, the employee should contact the security department in El Segundo, Calif., who will handle con- tact with law enforcement agencies and any needed co- ordination with DIRECTV departments.” We agree with the judge that this aspect of the Respondent’s handbook rule violates Section 8(a)(1). Section 8(a)(4) of the NLRA protects employees who file unfair labor practice charges or who provide infor- mation to the Board in the course of a Board investiga- tion. See NLRB v. Scrivener, 405 U.S. 117, 122–124 (1972). The Respondent’s broadly written rule, however, would lead reasonable employees to conclude that they would be required to contact the Respondent’s security department before cooperating with a Board investiga- tion. The Respondent’s employees would reasonably construe Board agents as “law enforcement” with respect to the labor matter under investigation; indeed, that is essentially the role of the NLRB. Further, we find that the rule is unlawfully broad insofar as it affects employee contacts with other law enforcement officials about wag- es, hours, and working conditions.8 In so finding, we acknowledge that an employer may, in some circumstances, have a legitimate interest in knowing about law enforcement agents’ attempts to in- terview employees. For example, an employer may wish to ensure that the employees have the opportunity to be represented by counsel during such interviews. The Re- spondent’s rule, however, is ambiguous: it fails to distin- guish those situations from protected employee contacts with Board agents or other law enforcement officials. Even if the Respondent here did not intend the rule to extend to protected communications, that intent was not sufficiently communicated to the employees. It is settled that ambiguity in a rule must be construed against the respondent-employer as the promulgator of the rule. See Lafayette Park Hotel, 326 NLRB 824, 828 (1998) (even if rule not intended to reach protected conduct, its lawful intent must be “clearly communicated to the employ- ees”), enfd. mem. 203 F.3d 52 (D.C. Cir. 1999). 3. Confidentiality rules The Respondent’s handbook provision section 4.3.1, entitled, “Confidentiality,” instructs employees to “[n]ever discuss details about your job, company busi- ness or work projects with anyone outside the company” and to “[n]ever give out information about customers or 8 See, e.g., T & W Fashions, 291 NLRB 137, 137 fn. 2 (1988) (Sec. 7 protects employees’ participation in investigative meetings with the U.S. Department of Labor); Squier Distributing Co., 276 NLRB 1195, 1195 fn. 1 (1985) (Sec. 7 protects employees’ concerted cooperation with the local sheriff in connection with their suspicion that a manager was embezzling company funds), enfd. 801 F.2d 238 (6th Cir. 1986). DIRECTV U.S. DIRECTV HOLDINGS 547 DIRECTV employees.”9 Further, the rule expressly in- cludes “employee records” as one of the categories of “company information” that must be held confidential.10 The explicit prohibition on releasing information con- cerning the “job” or fellow “DIRECTV employees” as well as “employee records” would reasonably be under- stood by employees to restrict discussion of their wages and other terms and conditions of employment. See, e.g., Flex Frac Logistics, LLC, 358 NLRB 1131, 1131 (2012) (unlawful confidentiality rule prohibited revealing in- formation “related to . . . personnel information and doc- uments”). See also Cintas Corp. v. NLRB, 482 F.3d at 468–469 (explaining that confidentiality rules that by their terms forbid disclosure of “information concerning employees” are unlawful).11 In those circumstances, the fact that the “Confidentiality” provision also covers “in- formation about customers,” “company business,” and other listed items cannot save it from condemnation.12 Finally, because the rule does not exempt protected communications with third parties such as union repre- sentatives, Board agents, or other governmental agencies concerned with workplace matters, employees would reasonably interpret the rule as prohibiting such commu- nications, making the rule unlawful for that reason as well. See Trinity Protection Services, 357 NLRB 1382, 9 The rule provides, in pertinent part: “Never discuss details about your job, company business or work projects with anyone outside the company, especially in public venues, such as seminars and confer- ences, or via online posting or information-sharing forums, such as mailing lists, websites, blogs, and chat rooms. Never give out infor- mation about customers or DIRECTV employees. In particular, cus- tomer information must never be transmitted through regular unen- crypted email, even internally within DIRECTV. If you have additional questions regarding data transmission guidelines, check with the IT department.” The full text of the rule is set forth in Appendix D to this decision. 10 The rule states, in pertinent part: “Company information is fun- damental to our success. Company information can consist of infor- mation such as contract terms, marketing plans, financial information, details about our technology, employee records and customer account information.” 11 See Double Eagle Hotel & Casino, 341 NLRB 112, 114–115 (2004) (collecting cases), enfd. 414 F.3d 1249 (10th Cir. 2005), cert. denied 546 U.S. 1170 (2006); Flamingo Hilton-Laughlin, 330 NLRB 287, 288 fn. 3 (1999) (unlawful confidentiality rule prohibited reveal- ing information about customers, hotel business, or “fellow employ- ees”). In contrast, more narrowly drafted confidentiality rules that do not specifically reference and restrict information concerning “employ- ees” and their “job[s]” have been found lawful. See Super K-Mart, 330 NLRB 263, 263–264 (1999) (prohibition against disclosing “company business and documents” did not by its terms include employee wages or working conditions and made no reference to employee infor- mation). 12 See IRIS, U.S.A., Inc., 336 NLRB 1013, 1013 fn. 1, 1018 (2001) (rule prohibiting disclosure of information concerning employees, customers, and the employer was unlawful); Flamingo Hilton- Laughlin, above, 330 NLRB at 288 fn. 3. 1383 (2011); accord: Hyundai American Shipping Agen- cy, 357 NLRB 860, 872 (collecting cases). Accordingly, we agree with the judge that the Respondent’s confiden- tiality rule violates Section 8(a)(1). 4. Intranet policy on “Company Information” On its intranet, the Respondent maintains a corporate policy entitled, “Employees.” It states: “Employees may not blog, enter chat rooms, post messages on public web- sites or otherwise disclose company information that is not already disclosed as a public record.” Although this policy itself references only unspecified “company in- formation,” the Respondent promulgated two overlap- ping sets of rules governing employee conduct—its in- tranet policies and its handbook—and effectively di- rected employees to read them as one.13 As explained, the handbook contains a confidentiality rule that defines “company information” as including “employee rec- ords.” The Respondent’s intranet policy does not further explain, limit, or otherwise address the term.14 Employ- ees who read the two policies in tandem would under- stand the intranet policy to prohibit disclosure of “em- ployee records,” which would include information con- cerning their own or fellow employees’ wages, disci- pline, and performance ratings. See Hyundai America Shipping Agency, 357 NLRB 860, 871 (prohibition on unauthorized disclosure of information from an “em- ployee’s personnel file” could reasonably be read to bar discussion of wages, disciplinary actions, and perfor- mance evaluations). At the very least, the scope of “company information” in the intranet policy is ambigu- ous in light of the handbook provision, and the Board has recognized that “employees should not have to decide at their own peril what information is not lawfully subject to such a prohibition.” Id. For these reasons, we find the Respondent’s maintenance of this policy to be unlaw- ful.15 13 The Respondent’s intranet, called the DEN, instructed employees to “[r]efer to the version of the handbook for your business unit,” and to “[r]efer to the DEN and other resources for the most up-to-date con- tent.” The handbook, in turn, stated that “policies and practices are periodically reviewed and are subject to change. Should their [sic] be any conflict, the full policy documents available on the DEN . . . will govern.” See Longs Drug Stores California, 347 NLRB 500, 501 (2006) (reading general and particular confidentiality provisions to- gether). 14 The Respondent does not contend that the lack of a specific refer- ence to “employee records” in the intranet policy has replaced or negat- ed that reference in the handbook policy. 15 The Charging Party contends that the rules should also be found unlawful because employees would understand them to prohibit disclo- sure of the Respondent’s business information even in furtherance of lawful boycotting, picketing, or strike activity. It is unnecessary to pass on this contention because the rules have already been found unlawful, and must be rescinded, for the reasons set forth. 548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. Respondent’s Attempted Repudiation of the Unlawful Rules We agree with the judge that the Respondent’s efforts to clarify its rules did not amount to a repudiation of its unlawful conduct. In order for a repudiation to serve as a defense to an unfair labor practice finding, it must be timely, unambiguous, specific in nature to the coercive conduct, and untainted by other unlawful conduct. Passavant Memorial Area Hospital, 237 NLRB 138 (1978). There must be adequate publication of the repu- diation to the employees involved, and the repudiation must assure employees that, going forward, the employer will not interfere with the exercise of their Section 7 rights. See, e.g., Rivers Casino, 356 NLRB 1151, 1152 (2011). Finally, the employer must admit wrongdoing. Id.; Ark Las Vegas Restaurant Corp. v. NLRB, 334 F.3d 99, 108 (D.C. Cir. 2003). Here, the Respondent’s purported repudiation was not timely. In Passavant, the Board found that an attempted repudiation occurring 7 weeks after an unlawful threat of discharge was untimely. The Board additionally ob- served, “Nor can we ignore the fact that Respondent de- layed until very nearly the eve of the issuance of com- plaint before publishing its disavowal.” 237 NLRB at 138. In the present case, the Respondent did not post its disclaimers until nearly a full year after it promulgated the rules at issue, and even then waited until after the complaint had issued.16 Compare Gaines Electric Co., 309 NLRB 1077, 1081 (1992) (repudiation timely where it occurred 1 month after the unlawful threat) with Fresh & Easy Neighborhood Market v. NLRB, 468 Fed. Appx. 1 (D.C. Cir. 2012) (upholding the Board’s conclusion that attempted repudiation made after complaint issued was untimely because it “follows logically” from the holding in Passavant), enfg. 356 NLRB 546, 561 (2011) (no effective repudiation where unlawful rule was in ef- fect for at least 10 months). In addition to acting in an untimely manner, the Re- spondent did not effectively repudiate its misconduct because it did not admit wrongdoing. In its bulletin- board posting at the Riverside, California facility where this case arose, the Respondent couched its disclaimer in terms of “clarify[ing]” its “intent” in “enforcing the poli- cies.” See Branch International Services, 310 NLRB 1092, 1105 (1993) (“Respondent’s attempt to ‘clarify’ the ‘misunderstanding’” does not meet the Passavant test), enfd. mem.12 F.3d 213 (6th Cir. 1993)); accord: 16 The handbook rules were issued on May 22, 2010, and the corpo- rate policy rules were posted on the Respondent’s intranet on July 1, 2010. The disclaimers were posted on May 9, 2011, on the Respond- ent’s intranet, as well as on a bulletin board at the Riverside, California facility where the instant dispute arose. Rivers Casino, 356 NLRB 1151, 1152, and cases cited therein. The Respondent’s intranet disclaimer similarly failed to acknowledge its unlawful conduct. We accordingly find that the Respondent did not effec- tively repudiate its unlawful rules under Passavant. C. Discharge of Gregory Edmonds The judge found, and we agree, that the Respondent unlawfully discharged employee Gregory Edmonds, an installer employed at the Respondent’s Riverside loca- tion.17 The judge correctly found that the Acting General Counsel met his initial burden under Wright Line18 to show that Edmonds’ union activity was a motivating factor in the discharge. In particular, after Edmonds spoke up forcefully in favor of unions at a mandatory employee meeting, Riverside Operations Manager Fred- dy Zambrano warned Edmonds that his installation jobs would be “QC’d” (referring to the quality control inspec- tions that supervisors performed of installers’ work). Although this threat of retaliation is sufficient on its own to establish animus, the record contains the following additional evidence: (1) according to credited testimony, Adrian Dimech, a vice president of the Respondent, told employees at the mandatory meeting that the Union “was bad for us and DIRECTV wouldn’t allow it”; (2) former Riverside employee Matthew Webster, who attended the mandatory meeting, testified that Dimech spoke about union activity with installers at the Respondent’s Rancho Dominguez, California location, and that Dimech was “basically there to tell us that nothing was coming of it, that, you know, ‘We’re going to shut it down,’ that ‘it ain’t gonna happen’”; and (3) the judge credited the tes- timony of employee Gallegos, a former employee at the Rancho Dominguez location, that Dimech interrogated him regarding the identity of union supporters.19 We further find, for the reasons stated by the judge, that the Respondent failed to prove it would have dis- charged Edmonds even in the absence of his union ac- 17 The Acting General Counsel and Charging Party except to the judge’s finding that the Respondent lawfully suspended Edmonds prior to his discharge. We find it unnecessary to pass on those exceptions because the complaint does not allege the suspension to be unlawful. 18 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright Line, the General Counsel must first prove, by a preponderance of the evidence, that the employ- ee’s protected conduct was a motivating factor in the employer’s ad- verse action. Once the General Counsel makes a showing of discrimi- natory motivation by proving the employee’s prounion activity, em- ployer knowledge of the prounion activity, and animus against the employee’s protected conduct, the burden of persuasion shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. See, e.g., Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004). 19 In finding that the Acting General Counsel carried his burden, we do not rely on the Respondent’s suspension of Edmonds. DIRECTV U.S. DIRECTV HOLDINGS 549 tivity. Accordingly, we affirm the judge’s conclusion that Edmonds’ discharge violated Section 8(a)(3) and (1). AMENDED REMEDY The standard remedy for an unlawful work rule is im- mediate rescission of the rule; this remedy ensures that employees may engage in protected activity without fear of being subjected to the unlawful rule. See, e.g., 2 Sis- ters Food Group, 357 NLRB 1816, 1823 (2011); Guardsmark, LLC, 344 NLRB 809, 812 (2005), enfd. in rel. part 475 F.3d 369 (D.C. Cir. 2007). In this case, the judge reasoned that rescission would be inappropriate, citing the Respondent’s “good faith” in seeking to re- solve this matter, and instead recommended that the Re- spondent and the Union “explore modifications” of the unlawful rules during the compliance stage. Unlike the judge, we discern no compelling reason for deviating from the usual remedial relief. The Respond- ent did not seek to disclaim the rules until after the com- plaint issued, and nothing in the record suggests that the Respondent sought to include the Union or employees in any discussions concerning modification of the rules. More importantly, the employees at the Riverside loca- tion are not represented and, accordingly, the Union can- not engage in bargaining or enter into an agreement on their behalf. The focus of our remedial relief in this type of case is to ameliorate the chilling effect of the mainte- nance of unlawful rules on the employees’ exercise of protected rights, and the immediate rescission of the rules effectuates that goal.20 20 Pursuant to Guardsmark, LLC, the Respondent may comply with our order of rescission by rescinding the unlawful provisions and re- publishing its employee handbook applicable to home service employ- ees without them. We recognize, however, that republishing the hand- book could be costly. Accordingly, the Respondent may supply the employees either with handbook inserts stating that the unlawful rules have been rescinded, or with new and lawfully worded rules on adhe- sive backing that will correct or cover the unlawfully broad rules, until it republishes the handbook without the unlawful provisions. Any copies of the handbook that include the unlawful rules must include the inserts before being distributed to employees. Id., 344 NLRB at 812 fn. 8. Rescission of the Respondent’s unlawful policies posted on its intra- net system, in contrast, imposes little if any burden on the Respondent. Further, the unlawful rules were in effect at the Re- spondent’s facilities nationwide. The corporate policies posted on the intranet apply to all of the Respondent’s facilities, and the handbook at issue here applies at more than 110 locations where the Respondent employs home services employees.21 “[W]e have consistently held that, where an employer’s overbroad rule is maintained as a companywide policy, we will generally order the em- ployer to post an appropriate notice at all of its facilities where the unlawful policy has been or is in effect.” Guardsmark, LLC, 344 NLRB at 812. As the D.C. Cir- cuit observed in enforcing a nationwide notice-posting in Guardsmark, “only a company-wide remedy extending as far as the company-wide violation can remedy the damage.” 475 F.3d at 381; accord: Mastec Advanced Technologies, 357 NLRB 103, 109 (2011).22 We accord- ingly amend the remedy and the judge’s recommended Order to be consistent with our discussion here.23 21 The Acting General Counsel does not allege as unlawful any pro- vision of the Respondent’s other two handbooks, which are applicable to customer care center employees and enterprise employees. 22 An employer may avoid imposition of a companywide remedy by showing that special circumstances justify a narrower remedy. See Guardsmark, LLC, 344 NLRB at 812 fn. 9. The Respondent asserts that such special circumstances are present here, citing its disclaimer and the lack of evidence that the rules were enforced. We have found the disclaimer to be insufficient, however, and it is settled that the maintenance of a rule likely to chill Sec. 7 activity, whether explicitly or through reasonable interpretation, constitutes an unfair labor practice even absent evidence of enforcement. Lafayette Park Hotel, supra, 326 NLRB at 825. We accordingly find no special circumstances here justifying narrowing the scope of notice posting. 23 The Charging Party has requested that the Board impose addition- al remedies of an expanded 6-month notice posting period and distribu- tion of the notice to the Respondent’s customers. The Charging Party also asks the Board to delete the reference in the notice to employees’ right to refrain from Sec. 7 activity. We do not find it appropriate to impose these remedies in this case. 550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER24 The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, DirecTV U.S. DirecTV Holdings, LLC, Riverside, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees because they supported the Union or engaged in other protected concerted activities. (b) Promulgating and maintaining a provision in its home services employee handbook entitled, “Communi- cations and Representing DirecTV” that contains the following language: “Do not contact the media” and “If law enforcement wants to interview or obtain infor- mation regarding a DIRECTV employee, whether in per- son or by telephone/email, the employee should contact the Security department in El Segundo, Calif., who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments.” (c) Promulgating and maintaining a provision in its home services employee handbook entitled, “Confidenti- ality” that contains the following language: “Never dis- cuss details about your job, company business or work projects with anyone outside the company. . . never give 24 We have modified the judge’s recommended Order to provide for electronic notice posting pursuant to J. Picini Flooring, 356 NLRB 11 (2010), and to conform to the Board’s standard remedial language. In addition, in accordance with our recent decision in Latino Express, Inc., 359 NLRB No. 44 (2012), we shall order the Respondent to reimburse discriminatee Edmonds an amount equal to the difference in taxes owed upon receipt of a lump-sum backpay payment and taxes that would have been owed had there been no discrimination against him. Further, we shall order the Respondent to submit the appropriate documentation to the Social Security Administration so that when backpay is paid to Edmonds, it will be allocated to the appropriate periods. We have substituted new notices to conform to our modifications. First, the Respondent shall be required to post the attached notice marked “Appendix A” at its Riverside, California location, where the discharge of Edmonds occurred and where the handbook rules applica- ble to home service employees and the nationwide DEN intranet corpo- rate policies at issue are in effect. The Respondent shall be required to post the attached notice marked “Appendix B” at all its other facilities nationwide where its employee handbook applicable to home services employees, along with the nationwide DEN intranet corporate policies, are in effect. Finally, recognizing that the Respondent has many loca- tions where the home services employee handbook is not applicable, but where the nationwide DEN intranet corporate policies are main- tained, the Respondent shall be required to post the attached notice marked “Appendix C” at all its facilities nationwide where its DEN intranet corporate policies are in effect but where its home services employees handbook rules we have found unlawful today are not in effect. (Appendix C does not encompass the Respondent’s DEN policy entitled, “Employees” because we are finding that policy unlawful only when read in tandem with provisions of the home services employee handbook.) out information about . . . DIRECTV employees [and] employee records.” (d) Promulgating and maintaining a corporate policy on its intranet system entitled, “Public Relations” that contains the following language: “Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations.” (e) Promulgating and maintaining a corporate policy on its intranet system entitled, “Employees” that contains the following language: “Employees may not blog, enter chat rooms, post messages on public websites or other- wise disclose company information that is not already disclosed as a public record.” (f) 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 Gregory Edmonds 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 Gregory Edmonds whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the judge’s decision. (c) Reimburse Edmonds an amount equal to the dif- ference in taxes owed upon receipt of a lump-sum back- pay payment and taxes that would have been owed had there been no discrimination against him. (d) Submit the appropriate documentation to the So- cial Security Administration so that when backpay is paid to Edmonds, it will be allocated to the appropriate periods (e) Within 14 days from the date of this Order, re- move from its files any reference to the unlawful dis- charge of Gregory Edmonds, and within 3 days thereaf- ter, notify him in writing that this has been done and that the discharge will not be used against him in any way. (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 of the Board’s Order, rescind the provision in its home services employee handbook enti- tled, “Communications and Representing DirecTV” that DIRECTV U.S. DIRECTV HOLDINGS 551 contains the following language: “Do not contact the media” and “If law enforcement wants to interview or obtain information regarding a DIRECTV employee, whether in person or by telephone/email, the employee should contact the Security department in El Segundo, Calif., who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments.” (h) Within 14 days of the Board’s Order, rescind the provision in its home services employee handbook enti- tled, “Confidentiality” that contains the following lan- guage: “Never discuss details about your job, company business or work projects with anyone outside the com- pany. . . never give out information about . . . DIRECTV employees [and] employee records.” (i) Within 14 days of the Board’s Order, rescind the corporate policy on its intranet system entitled, “Public Relations” that contains the following language: “Em- ployees should not contact or comment to any media about the company unless pre-authorized by Public Rela- tions.” (j) Within 14 days of the Board’s Order, rescind the corporate policy on its intranet system entitled, “Em- ployees” that contains the following language: “Em- ployees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company infor- mation that is not already disclosed as a public record. (k) As more fully set out in the Amended Remedy, furnish all current home services employees with (1) inserts for the current home services employee handbook that advise that the unlawful rules have been rescinded, or (2) the language of lawful rules on adhesive backing that will cover or correct the unlawful rules; or (3) pub- lish and distribute revised handbooks that do not contain the unlawful rules. (l) Within 14 days after service by the Region, post at its Riverside, California, facility copies of the attached notice marked “Appendix A;” within that same time pe- riod post at all its facilities nationwide where its employ- ee handbook applicable to home services employees is in effect copies of the attached notice marked “Appendix B;” and within that same time period post at all its facili- ties nationwide where its DEN intranet corporate policies are in effect and where its home service employees handbook is not in effect copies of the attached notice marked “Appendix C.”25 Copies of the notices, on forms 25 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.” provided by the Regional Director for Region 21, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its members by such means. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceed- ings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since May 22, 2010. (m) Within 21 days after service by the Region, file with the Regional Director for Region 21 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your 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 or otherwise discriminate against any of you for supporting International Associa- tion of Machinists and Aerospace Workers, District Lodge 947, AFL–CIO, or engaging in other protected concerted activities. WE WILL NOT promulgate and maintain a provision in our home services employee handbook entitled, “Com- munications and Representing DirecTV” that contains the following language: “Do not contact the media” and “If law enforcement wants to interview or obtain infor- mation regarding a DIRECTV employee, whether in per- 552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD son or by telephone/email, the employee should contact the Security department in El Segundo, Calif., who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments.” WE WILL NOT promulgate and maintain a provision in our home services employee handbook entitled, “Confi- dentiality” that contains the following language: “Never discuss details about your job, company business or work projects with anyone outside the company. . . never give out information about . . . DIRECTV employees [and] employee records.” WE WILL NOT promulgate and maintain a corporate policy on our intranet system entitled, “Public Relations” that contains the following language: “Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations.” WE WILL NOT promulgate and maintain a corporate policy on our intranet system entitled, “Employees” that contains the following language: “Employees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record.” 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 Gregory Edmonds 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 Gregory Edmonds whole for any loss of earnings and other benefits resulting from his dis- charge, less any net interim earnings, plus interest. WE WILL reimburse Gregory Edmonds an amount equal to the difference in taxes owed upon receipt of a lump-sum backpay payment and taxes that would have been owed had there been no discrimination against him. WE WILL submit the appropriate documentation to the Social Security Administration so that when backpay is paid to Gregory Edmonds, it will be allocated to the ap- propriate periods. 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 Gregory Edmonds, 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 rescind the provision in our home services employee handbook entitled, “Communications and Rep- resenting DirecTV” that contains the following language: “Do not contact the media” and “If law enforcement wants to interview or obtain information regarding a DIRECTV employee, whether in person or by tele- phone/email, the employee should contact the Security department in El Segundo, California, who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments.” WE WILL rescind the provision in our home services employee handbook entitled, “Confidentiality” that con- tains the following language: “Never discuss details about your job, company business or work projects with anyone outside the company . . . never give out infor- mation about . . . DIRECTV employees [and] employee records.” WE WILL rescind the corporate policy on our intranet system entitled, “Public Relations” that contains the fol- lowing language: “Employees should not contact or comment to any media about the company unless pre- authorized by Public Relations.” WE WILL rescind the corporate policy on our intranet system entitled, “Employees” that contains the following language: “Employees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record.” WE WILL furnish all of you with (1) inserts for the cur- rent edition of the home services employee handbook that advise you that the unlawful provisions above have been rescinded; or (2) the language of lawful provisions on adhesive backing that will cover or correct the unlaw- ful rules; or (3) WE WILL publish and distribute to all of you a revised employee handbook that does not contain the unlawful provisions. DIRECTV U.S. DIRECTV HOLDINGS, LLC APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your 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 promulgate and maintain a provision in our home services employee handbook entitled, “Com- DIRECTV U.S. DIRECTV HOLDINGS 553 munications and Representing DirecTV” that contains the following language: “Do not contact the media” and “If law enforcement wants to interview or obtain infor- mation regarding a DIRECTV employee, whether in per- son or by telephone/email, the employee should contact the Security department in El Segundo, Calif., who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments.” WE WILL NOT promulgate and maintain a provision in our home services employee handbook entitled, “Confi- dentiality” that contains the following language: “Never discuss details about your job, company business or work projects with anyone outside the company . . . never give out information about . . . DIRECTV employees [and] employee records.” WE WILL NOT promulgate and maintain a corporate policy on our intranet system entitled, “Public Relations” that contains the following language: “Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations.” WE WILL NOT promulgate and maintain a corporate policy on our intranet system entitled, “Employees” that contains the following language: “Employees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record.” 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 rescind the provision in our home services employee handbook entitled, “Communications and Rep- resenting DirecTV” that contains the following language: “Do not contact the media” and “If law enforcement wants to interview or obtain information regarding a DIRECTV employee, whether in person or by tele- phone/email, the employee should contact the Security department in El Segundo, Calif., who will handle con- tact with law enforcement agencies and any needed co- ordination with DIRECTV departments.” WE WILL rescind the provision in our home services employee handbook entitled, “Confidentiality” that con- tains the following language: “Never discuss details about your job, company business or work projects with anyone outside the company. . . never give out infor- mation about . . . DIRECTV employees [and] employee records.” WE WILL rescind the corporate policy on our intranet system entitled, “Public Relations” that contains the fol- lowing language: “Employees should not contact or comment to any media about the company unless pre- authorized by Public Relations.” WE WILL rescind the corporate policy on our intranet system entitled, “Employees” that contains the following language: “Employees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record.” WE WILL furnish all of you with (1) inserts for the cur- rent edition of the home services employee handbook that advise you that the unlawful provisions above have been rescinded; or (2) the language of lawful provisions on adhesive backing that will cover or correct the unlaw- ful rules; or (3) WE WILL publish and distribute a revised employee handbook that does not contain the unlawful provisions. DIRECTV U.S. DIRECTV HOLDINGS, LLC APPENDIX C NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your 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 promulgate and maintain a corporate policy on our intranet system entitled, “Public Relations” that contains the following language: “Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations.” 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 rescind the corporate policy on our intranet system entitled, “Public Relations” that contains the fol- lowing language: “Employees should not contact or comment to any media about the company unless pre- authorized by Public Relations.” DIRECTV U.S. DIRECTV HOLDINGS, LLC APPENDIX D 3.4 Communications and Representing DIRECTV 554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To shape and communicate the company’s image and reputation, the company makes timely and accurate in- formation available to a variety of audiences. This in- formation is released in a professional, coordinated man- ner following the appropriate reviews and approvals. The management members responsible for authorizing the release of company information are identified in the Communications policy (located on the DEN and in the policy binder at your work location). To ensure the company presents a united, consistent voice to a variety of audiences, these are some of your responsibilities re- lated to communications:  In accordance with the policy on the Use of Company Resources, you are not al- lowed to blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record. See the policies on Social Media and on Pro- tecting Company Information & Customer Privacy (located on the DEN and in the policy binder at your work location) for more details.  DIRECTV-branded social media proper- ties, such as DIRECTV accounts on Face- book, Twitter, YouTube, etc., are moni- tored by the Social Media Team. Unless you have been granted special permission from the DIRECTV Social Media Team, you should not respond to fan posts and/or post comments that are related to DIRECTV’s business (e.g., customer complaints, troubleshooting, pricing ques- tions, etc.).  If you participate in a discussion about DIRECTV on a social media platform, you should disclose that you are a DIRECTV employee. But you may not act as a spokesperson for the company or as a subject matter expert on DIRECTV’s products or services. Any questions from customers or other members of public fo- rums should be routed to Public Relations or Customer Care, depending on the na- ture of the question.  Do not contact the media, and direct all media inquiries to the Home Services Communications department.  Upon determining the need for releasing information to the public, each employee, in collaboration with the appropriate Communications function, is responsible for the timeliness, accuracy and appropri- ateness of information made public, as well as for receiving the proper authoriza- tion for release.  If law enforcement wants to interview or obtain information regarding a DIRECTV employee, whether in person or by tele- phone/email, the employees should con- tact the Security department in El Segun- do, Calif., who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments.  Direct all company-related speaking invi- tations to the Home Services Communica- tions department.  If you plan to present on behalf of DIRECTV at a conference, seminar or other event, you must obtain the necessary approvals in advance. These may include your management, the Public Relations department, the Legal department and other related individuals and departments.  If you engage in political activities, you do so as a private citizen on your own personal time.  You must consult and coordinate with the Home Services Communications depart- ment for internal and external meetings and events with a budget exceeding $5,000 and/or involving company execu- tives. See your immediate supervisor or HR representative, who can escalate your communications concern up through their management and, if necessary, involve the Public Relations, Communications or Security depart- ments at headquarters in El Segundo, Calif., in order to determine a proper course of action. 4.3.1 Confidentiality Company information is fundamental to our success. Company information can consist of information such as contract terms, marketing plans, financial information, details about our technology, employee records and cus- tomer account information. Information that can be used to identify specific employees and customers, or that is considered private (such as our customers’ bank and credit card information), is particularly sensitive. Re- member that unless expressly approved for external re- lease, all company information is for internal use only and must be carefully stored, transmitted and (when nec- essary) destroyed. DIRECTV U.S. DIRECTV HOLDINGS 555 Be aware that federal and state laws and standards im- posed by credit card issuers and the payment card indus- try require us to take special precautions when sharing personally identifiable information (PII) of employees and customers–even internally within DIRECTV. A breach in the confidentiality or security of this infor- mation could subject DIRECTV to significant legal and financial penalties and brand damage. Personally identifiable information includes:  Names, addresses and phone numbers  Social Security numbers, identification numbers and driver’s license numbers  Credit and debit card numbers  Credit applications, scores and reports  Background checks  Bank account numbers Your obligation to protect the confidentiality of com- pany information applies both inside and outside of the office, and continues even after you leave your employ- ment with DIRECTV. Please ensure that you always follow these guidelines:  Never discuss details about your job, company business or work projects with anyone outside the company, especially in public venues, such as seminars and conferences, or via online posting or information-sharing forums, such as mailing lists, websites, blogs and chat rooms.  Do not use the company’s name, logo or trade- marks within any public profiles you may have (i.e. pictures, screen names and handles), and do not use your DIRECTV email address when registering on social media platforms.  Never give out information about customers or DIRECTV employees. In particular, customer information must never be transmitted through regular unencrypted email, even internally within DIRECTV. If you have additional questions regarding data transmission guide- lines, check with the IT department.  Never allow still and video cameras, other than those used as part of your daily job function (i.e., quality control), to be brought onto DIRECTV premises without prior approval from your site manager. Although cell phones with camera features are not specifically pro- hibited, do not use the camera feature to record any company-sensitive or potentially sensitive information or interiors of facilities. In addi- tion, remember these five simple principles to help you protect sensitive information: 1. Take stock. Assess what information you have and determine who has access to it. 2. Scale down–If you don’t have a legitimate business need, don’t collect it. Keep it only as long as necessary. 3. Lock it–Limit access to sensitive information. Don’t use faxes, email or voice mail to send messages containing sensitive information. 4. Pitch it–Follow our record retention policy. Use shredders or secure bins. 5. Plan ahead–If a computer is compromised, discon- nect it from the internet and notify IT immediately. Sometimes confidential or proprietary company infor- mation must be shared with third parties in order to con- duct business. To ensure its protection, DIRECTV re- quires that a nondisclosure or confidentiality agreement (often called an “NDA”) be put in place before this oc- curs and that information be exchanged via certain secure systems or processes. All NDAs must be approved by the DIRECTV Legal department. Jean C. Libby, Esq., for the General Counsel. Gregory D. Wolflick, Esq. (Wolflick & Simpson), of Glendale, California, for the Respondent. Adam J. Luetto, Esq. (Weinberg, Roger & Rosenfeld), of Los Angeles, California, for the Union. DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge. Pursuant to a notice of hearing in this matter was held before me in Los Angeles, California, on July 19 and 20, 2011. The charge was filed by International Association of Machinists and Aerospace Workers, District Lodge 947, AFL–CIO (the Union) on Octo- ber 18, 2010, and an amended charge was filed by the Union on April 20, 2011. Thereafter, on April 21, 2011, the Regional Director for Region 21 of the National Labor Relations Board (the Board) issued a complaint and notice of hearing alleging a violation by DirecTV U.S. DirecTV Holdings, LLC (the Re- spondent) of Section 8(a)(1) and (3) of the National Labor Re- lations Act (the Act). The Respondent, in its answer to the complaint, duly filed, denies that it has violated the Act as al- leged. The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs have been received from counsel for the General Counsel (the Gen- eral Counsel), counsel for the Respondent and counsel for the Union. Upon the entire record, and based upon my observation of the witnesses and consideration of the briefs submitted, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, a California State corporation, maintains an office and place of business in Riverside, California, where it is 556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD engaged in the business of providing digital television enter- tainment services. In the course and conduct of its business operations the Respondent annually derives gross revenues in excess of $100,000, and annually purchases and receives at its Riverside, California facility goods, products and materials valued in excess of $50,000 directly from points outside the State of California. It is admitted and I find that the Respondent is, and at all material times has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is, and at all times material here has been, a labor organization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Issues The principal issues in this proceeding are whether the Re- spondent has violated and is violating Section 8(a)(1) and (3) of the Act by suspending and discharging employee Gregory Ed- monds, and whether the Respondent has violated and is violat- ing Section 8(a)(1) of the Act by promulgating and maintaining in effect various handbook provisions and other rules or poli- cies which prohibit lawful Section 7 union or protected con- certed activity. B. Edmonds’ Suspension and Discharge 1. Facts The Respondent, a nationwide company with facilities throughout the United States, including the Riverside, Califor- nia facility involved herein, installs TV satellite dishes for con- sumers. Gregory Edmonds was employed by the Respondent as an installer, also referred to as an installation technician, from November 2007, until his discharge on July 28, 2010.1 Ed- monds was one of approximately 50 installers working out of the Riverside facility. Installers are primarily paid on a piecework basis; that is, ac- cording to how many installations they complete during the workday. The more installations, the more money they earn. However, if their piecework pay during the pay period is less than a guaranteed minimum base pay, they receive the guaran- teed minimum amount in lieu of their piecework earnings. There were three tiers of base pay for the installers, according to their expertise with certain types of installations, and Ed- monds had attained the highest level approximately 2 weeks prior to his termination. Edmonds was also one of five or six installers who would be assigned service tech work, that is, troubleshooting previously installed equipment pursuant to customer inquiries or complaints. During times material here the installers have complained about certain inequities with this pay system as well as related matters resulting from the daily routine of having to wait in line 1 All dates or time periods herein are within 2010, unless otherwise specified. at the Respondent’s facility each morning to obtain the requisite equipment to be installed at the customers’ premises. Thus, in addition to the frustration of simply having to wait in line, the wait time also impacted their earnings. Another matter about which certain employees complained was the lengthy commute time it would take for certain River- side installers to drive from Riverside to customers’ locations in the San Diego area. This, too, impacted their earnings. Edmonds, who, according to the Respondent, was discharged for using profanity toward Riverside Operations Manager Fred- dy Zambrano, testified that from the time he was hired he regu- larly used profanity, which he termed “construction talk,” in- cluding the “f-word,” on a daily basis, to punctuate his conver- sation with his coworkers, with his supervisor, Lamar Wilson, as well as with Manager Zambrano. Other employees also testified about the use of profanity by employees, supervisors, and managers alike at the Respond- ent’s facility. Former employee Matthew Webster testified that at supervisory team meetings conducted by Supervisor Lamar Wilson, who was also Edmonds’ supervisor, installers would complain about work-related matters, characterizing certain new changes or requirements as “f–cking bullsh–t,” as the addi- tional requirements impacted the number of installations that could be completed and thereby effected the installers’ com- pensation. Such or similar language was not unusual. At no time were employees told by Supervisor Wilson to watch their language; and sometimes Wilson also used such language. Webster testified the average time for waiting in line each morning was about 45 minutes, and employees would complain about the wait in the presence of supervisors or managers, in- cluding Zambrano. They would make such statements such as, “This is a f–cking waste of my time.” Webster recalled one occasion when Zambrano asked him how things were going. Webster answered, “This f–cking sucks,” and Zambrano re- plied, “Well, you’ve got to f–cking deal with it.” At one weekly meeting, conducted by Zambrano and attended by all the em- ployees, Zambrano said, according to Webster, “Why aren’t these f–cking vans clean?” On another occasion, when Region- al Manager Scott Thomas was conducting a meeting at the facility, Thomas told the assembled employees, “We got to do our f–cking jobs. These vans should be cleaned. You know, this is how we represent our company.”2 Brandon Ojeda, a current employee, reluctantly agreed with the statement in his Board affidavit that on one occasion Zam- brano called him in to the office to be admonished for a work- related matter, and asked Ojeda, in the presence of Supervisor Wilson, “Is this the f–cking type of work you do?” Ojeda an- swered, “This ain’t the f–cking type of work I do.” Ojeda, during the course of his testimony, however, claims that alt- hough his affidavit is correct as far as it goes, he, rather than Zambrano, was the first to utter profanity. Thus, he claims that 2 Neither Supervisor Wilson nor Regional Manager Thomas testified in this proceeding, and Zambrano did not contradict this specific testi- mony of Webster. I credit Webster. DIRECTV U.S. DIRECTV HOLDINGS 557 when he entered the room he jokingly said, “Another F’ing promotion.” This does not appear in his affidavit, however.3 Edmonds testified that about a month prior to his discharge he met with union representatives at the home of coworker Brandon Ojeda. Another employee, Matthew Webster, was also present. The three employees, according to Edmonds, were told by the union representative to just try to get a feel for who might be interested in union representation. After this meeting Edmonds spoke to about four coworkers in a general manner about whether they might be interested. About a week after the aforementioned union meeting at Ojeda’s home, according to Edmonds, the Respondent conduct- ed a Saturday morning meeting at the Riverside facility. Satur- days are the only day of the week when all installers are re- quired to work, apparently because this is the day when most installation customers will be at home. Saturday meetings were held on a regular basis to discuss any work-related issues or problems that employees may have encountered during the week. Manager Zambrano customarily conducted the Saturday meetings, but on occasion Area Manager Scott Thomas would conduct the meetings. However, unlike other Saturday meet- ings, an announcement was posted at the facility that this par- ticular meeting4 was a mandatory meeting that all employees were required to attend. Some 60 to 80 employees, supervisors, and managers, attended this meeting. Zambrano began the meeting by introducing Adrian Dimech, vice president of operations for Southern California, and said that Dimech had some union matters to discuss. This is the first time the subject of union representation had come up at a com- pany meeting. According to Edmonds, Dimech “just began his meeting by telling us that there was another office in Rancho Dominguez that had voted to have a union come in and that the union won the election and that he was there to talk to us about trying to keep that from spreading to other sites.”5 “Mainly,” according to Edmonds, “he was asking us if there were issues that he could address so that that wouldn’t become a necessity. If everything was taken care of on that level, then there really wouldn’t be a need for a union in his mind.”6 3 I do not credit Ojeda’s testimony in this latter regard. As amply demonstrated throughout his testimony, he was clearly fearful of having to testify against his employer in this proceeding. 4 The date of this meeting is in contention, infra. 5 Respondent’s installers at a nearby facility in Rancho Dominguez, California, had voted in an NLRB election, held on April 16 (Case 21– RC–021191), to be represented by the Union involved in this proceed- ing. During the preelection campaign at that facility the Respondent had advised the installers it opposed union representation. The Re- spondent filed election objections premised, inter alia, on the conten- tion that one or more of its supervisors tainted the election process by engaging in prepetition prounion solicitation of union authorization cards, activity that undermined the employees’ free choice in the elec- tion. A hearing on election objections was held on June 8 and 9. The hearing officer determined in his report, dated July 7, that in fact super- visory involvement tainted the election process, and recommended that the election results be set aside. At the time of the hearing, this matter was pending before the Board. 6 Dimech was involved in the Respondent’s Rancho Dominguez preelection campaign. Noe Gallegos, a former field supervisor at the Rancho Dominguez facility who was terminated from that facility on This invitation by Dimech for the employees to present their concerns prompted a few employees to speak up with com- plaints or suggestions. Edmonds spoke up. He had several issues. Edmonds, who was one of the installers sometimes as- signed San Diego duty, complained that he and other installers were not being sufficiently paid for the time—some 2 hours— that it took them to drive from Riverside to San Diego; and moreover, once they arrived, they were sometimes unable to complete the installation because of some problem at the site. He complained that this was a big waste of time, for which the installers were not receiving travel time over and above their minimum hourly rate, thus affecting their compensation. In response to this complaint, Dimech, according to Edmonds, said he would see what he could do to change that. Edmonds also complained about the Respondent’s practice of adding time-consuming tasks to the job assignments of installers at the site, which would reduce the number of installations per day and also affect their compensation. Edmonds said he thought this was unfair. Further, Edmonds said that it would be more advantageous or fair if the installers were paid only an hourly rate, at an in- creased hourly amount, rather than the then-current hour- ly/piecework rate, so that they could make more money. Re- garding this particular request, Dimech replied that such a pro- posed change was not his decision to make, that decisions of that nature were “far over his head,” and that all he could do was present this suggestion to the company. To this remark, Edmonds replied, “Okay. So you just said as an individual that you can’t do anything for us. But [what] I’m wondering is if we were a collective body if maybe the company might hear us.” Some employees, according to Edmonds, were saying they didn’t want a union and others said they did. Employee Bran- don Ojeda backed up Edmonds, and said “they might hear us better if we were a collective body than just a bunch of individ- uals.”7 about May 18, and who has a current charge pending with the Board over his discharge, testified in the instant proceeding. Gallegos testi- fied that Dimech, who participated in two meetings with supervisors and, although Gallegos’ testimony is unclear on this point, conducted perhaps some or all of eight meetings with the entire employee com- plement, asked Gallegos to identify employees and supervisors who were supporting the union. He told Gallegos that he was authorized to grant him “immunity”—Gallegos understood that it was immunity from discharge—in exchange for his assistance. Gallegos said he did not know who was prounion or procompany. Dimech told him, “If the union was to come in, that the site could possibly be closed, that the work could be handed out to contractors.” I credit Gallegos’ testimony. 7 As noted above, Brandon Ojeda, a current employee, was a very re- luctant witness. He was upset that he had been subpoenaed to testify. He seemed fearful of testifying against his employer, and accused the General Counsel of “throwing me under the bus completely. . . .” Ojeda testified as follows regarding Dimech’s remarks at the meeting: “I mean, there’s no beating around the bush. He [Dimech] was trying to talk guys out of not liking the union. And that’s what it was.” Ojeda’s affidavit states: “The gist of what Dimech said was that the union was bad for us and DirecTV wouldn’t allow it.” During his testimony Ojeda confirmed that this was the understanding he took away from Dimech’s remarks. I credit Ojeda’s testimony. 558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD According to Edmonds, Dimech “just kind of turned red and didn’t really have much of a response at all.” According to former employee Matthew Webster, who also spoke up at the meeting, Edmonds’ remarks caused Dimech some consterna- tion: Dimech “seemed a little dumbfounded. He wasn’t pre- pared for the conversation that he was having that day.” 8 The meeting lasted approximately an hour. Some of the em- ployees complemented Edmonds for speaking up, and one coworker said he was his hero.9 Then Edmonds gathered his supplies and proceeded to his van in preparation to make his installation calls for the day. Dimech followed Edmonds to his van. He asked Edmonds what he, Dimech, could do about the issues that were raised. After some discussion, Dimech said he would address the issues and see if he could get them taken care of. Edmonds replied, “that would be great,” adding, “it probably wouldn’t be necessary for a union to come in if Di- recTV would take care of this stuff.” Edmonds further said, “But I told him that they weren’t taking care of it. And that I knew that the only reason that he was here for this meeting was to discourage the union from coming in.” Dimech replied that they had “things that were in the works . . . that they were going to be offering us. But that they couldn’t do that right now with all of this pending because . . . it could tie up negotiations or whatever for quite a while depending on the outcome of this whole union being voted in or not.” Dimech said he “couldn’t elaborate on what the Respondent was going to be offering us.” The conversation lasted about 45 minutes. During this conver- sation Edmonds was apparently cleaning out his truck from the day before, and Dimech asked if he could take Edmonds’ trash back to the office and throw it away for him. He gave Edmonds his business card and said, “[I]f there was anything he could do for me to give him a call.” Regional Operations Vice President Dimech testified that he oversees 11 facilities employing a total of about 900 employ- ees. Scott Thomas, regional director of operations, Southern California, reports to Dimech, and Riverside Manager Zambra- no reports, in turn, to Thomas. Dimech testified that the meet- ing he held with the Riverside employees was on May 22, and he knows this “because I looked it up on my calendar.” He testified it was not possible that the meeting could have been held during the month of June, as Edmonds had testified, “be- cause we were moving facilities around at that time, and it would have been logistically difficult and cumbersome for us to 8 According to Webster, Dimech was portraying the Union as “bad, bad, bad.” Webster testified he did not directly come out in favor of the Union but rather suggested to Dimech that if the Company did not want a union it should not ignore the requests of the employees for the op- portunity to earn more money. Dimech said he would look into it. However, Webster testified that Edmonds’ remarks were more forceful. Webster characterized Edmonds’ remarks as follows: “He was basically saying, ‘Don’t listen to him [Dimech].’ You know, the union is a good thing. You know, if we all stand together, it’s not just one voice. It’s all of us. That’s what a union is.” After the meeting some employees thanked Edmonds for saying what they themselves wanted to say. 9 Eber Urretia, a current employee who appeared reluctant to testify on Edmonds’ behalf, testified that after the meeting he “probably” approached Edmonds and told him “not to try to be a hero because that’s going to bite him in the butt.” have conducted the meetings around that time.” He had con- ducted other meetings with the Riverside employees, and may have attended meetings prior to May 22, during which employ- ees also raised concerns about having to wait in line to get their equipment. Dimech testified that he scheduled the meeting merely as a “courtesy” to the Riverside employees to update them on the union situation at the Rancho Dominguez facility, as employees of the two facilities would talk about such matters among them- selves. Dimech said that at the time of the meeting or thereafter he was not aware of union activity among the Riverside em- ployees, and that the meeting was not in response to such activ- ity. The meeting lasted about 45 minutes. Dimech spoke about the union election in Rancho Dominguez that had been held on April 16. He told them the Union had won the election by a margin of three votes, but there was a hearing pending to de- termine whether the election would be invalidated, as there was good reason to suspect that supervisors had been involved in the solicitation of union cards. He explained to the employees the seriousness of signing union cards and cautioned them that cards should be signed only after they were fully educated on the implications of signing a card. He did not tell them not to sign cards. Asked whether he communicated anything else about unions in general he said, “[N]o, I don’t believe so.” Dimech testified that several employees spoke up and “said they were advocates of union representation.” While Dimech denied that he became flustered during the meeting as a result of employees’ union advocacy, he did not specifically deny or otherwise contradict the accounts of the meeting testified to by Edmonds and other employees, supra. Dimech testified that his subsequent conversation at Edmonds’ van lasted approximately 10 minutes, rather than about 45 minutes as Edmonds testified, but he did not otherwise deny or contradict Edmonds’ account of the conversation. Zambrano testified that he was present during the entire meeting and heard Edmonds’ comments and the comments of others. Zambrano testified that Edmonds’ comments at the meeting that day were not any different than comments he had made during other meetings, except for “the fact that he ex- pressed his experience was—he had been involved—he had been involved with unions before.” Asked whether Dimech’s remarks were to the effect that the Respondent did not want a union, Zambrano answered, “possibly.” Edmonds testified that on the first or second workday fol- lowing the Saturday meeting, Zambrano made the statement in front of him, “Well, we’re going to go out and QC all of Greg’s jobs today.” This comment was overheard by another employ- ee, who so testified, adding that Zambrano did not appear to be joking.10 Apparently there was no further exchange between Edmonds and Zambrano on that occasion. Zambrano, during 10 Mathew Webster testified he overheard this conversation. He heard Zambrano tell Edmonds “that he would be QC’ing all his jobs from now on.” According to Webster, this statement was tantamount to saying that Edmonds would be kept under surveillance. Zambrano appeared to be serious, and, according to Webster, there would have been no reason to make such a statement in jest. Zambrano, during his testimony, did not specifically contradict Webster’s testimony, but said he didn’t “recall” making such a statement. DIRECTV U.S. DIRECTV HOLDINGS 559 the course of his testimony, answered “no” when asked whether he “recalled” making such a statement, but did not specifically deny making such a statement.11 Also, according to Edmonds, on about the same day the of- fice secretary came out to Edmonds’ vehicle, and showed him a document reflecting a call from corporate headquarters. The document stated that Edmonds, and apparently the other River- side installers who were assigned San Diego installations, were going to be paid for the aforementioned issue that Edmonds had raised at the meeting with Dimech. Later that day Edmonds received a phone call directly from Dimech, who also told him he would be paid “for those issues that I brought up.” Edmonds, who had never before received a call from Dimech, simply thanked him. Edmonds regularly complained to Zambrano and to Lamar Wilson about the long wait in line each morning, sometimes for as much as an hour and a half, to be issued the satellite dishes and receivers he would need for the day’s scheduled installa- tions. The line was not monitored, and, adding to the frustration was the fact that some installers would let their buddies cut in line. Edmonds’ protestations were to no avail; both Zambrano and Wilson told him they could not do anything about it. Other installers also complained on a daily basis. As the Respondent was preparing to move to a new Riverside facility—the Myers Street location—Zambrano told the employees that the new facility would have lockers for each installer, and that the lock- ers would be stocked the night before with the components they would need the following day; in this manner the wait in line would be eliminated. However, according to Edmonds, the situation did not change when they moved to the new Myers Street location in early July, even though the lockers were in place.12 Accordingly, the complaints of Edmonds and other employees continued. On the morning of July 21, at about 6:30 a.m., Edmonds met with Supervisor Wilson and received the hard copies of his work orders for the day. Then, as was his routine, he began standing among the other installers to get his materials. Accord- ing to Edmonds, there was no actual “line,” but rather a disor- ganized gathering or crowd of some 40 to 60 installers. Ed- monds testified that after standing there for quite some time, watching other installers letting their friends cut in, he “was getting frustrated because that takes away from my time to get to a job to do what I have to do in a timely fashion without having a customer call in and say where am I or this and that.” At this time Zambrano happened to walk into the warehouse. Edmonds noticed his presence, and, from about 20 or 25 feet away, over the rather noisy chatter of the installers, Edmonds said to Zambrano, “Freddy, can’t you do something about this f–cking line? I stand in this f–cking line ten hours a day.” Zambrano walked over, put his arms out as if to block others 11 While supervisors routinely go out on quality control inspections checking the work of the installers they supervise, each supervisor has about 15 installers under his supervision and there is no showing that a supervisor would QC each and every job of a particular installer. 12 In preparation for the new procedure, the installers were to return to the facility each night and fill out paperwork showing what they would need for the day’s work, so that the items could be placed in their lockers by the following morning. from getting in front of Edmonds, and said, “Oh, Greg. No- body cut in front of Greg. Okay?” Edmonds said that he “felt kind of stupid and humiliated, and shut up and got his stuff and went to work.” Apparently this incident was over in a matter of seconds. The following morning, July 22, Edmonds saw on his handheld computer that he had received no assignments. He drove to the facility and spoke with Supervisor Wilson. Wilson told him that Zambrano wanted to have a talk with him. He met with Zambrano and Assistant Manager Roy Cienfuegos. Zambrano handed him an Employee Consultation Form dated July 21, and told him that he was going to be suspended for his outburst the day before. The form states, inter alia, as follows: Insubordination toward a supervisor, manager, security repre- sentative or other designated person in authority. On Wednesday, July 21, 2010 at 7:30 AM, Greg Edmonds started yelling towards Freddy Zambrano (Operations Man- ager) that he needed to “F–cken do something about this F– cken line”, and that it was “Bullsh–t!” that he had to wait for like 10 hours, while other techs cut in front of him. I told him that I did not think he was waiting in line for 10 hours, and that the lockers should be ready for use by this upcoming Sat- urday. He then continued to curse in line in front of other technicians, Thus creating an uncomfortable and hostile work environment. The “Corrective Action” portion of the form notes that Ed- monds was being given a “Suspension.” The “Action Plan” portion of the form notes that “Immediate and sustained im- provement must be shown or further disciplinary action may be taken up to and including termination,”13 and further notes that the suspension was to end on July 28. Edmonds did not dispute the matter, signed the form, left the office, and removed his tools from his van in preparation for being driven home by Manager Cienfuegos. Before leaving the facility he had a con- versation with his supervisor14 and a further conversation with Zambrano. Edmonds testified that during his subsequent conversation with Zambrano he apologized to Zambrano for “the whole situ- ation,” and suggested, as a resolution of the problem, that poles or standards be set up in the warehouse “so that there would be an orderly line instead of a big crowd.” Zambrano told him it didn’t matter, as the guys would ignore the poles; further, he said that the lockers would be ready soon. Edmonds asked him, “You’re not going to fire me, are you?” Zambrano said, “No. When you get back from your suspension, you’ll go back to work.” Manager Cienfuegos drove Edmonds home that day. Cien- fuegos testified that during the drive home Edmonds apolo- gized and told him “he was sorry for what had happened and that he wished he could take it back.” 13 This particular language is preprinted on each Employee Consulta- tion form, regardless of the action to be taken. 14 The record does not note the substance of this conversation. 560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD After the suspension period15 Edmonds phoned Supervisor Wilson about returning to work. Wilson told him he would be notified. Shortly thereafter he received a phone call from the office secretary, who instructed him to meet with Zambrano that afternoon. He arrived for the meeting. Zambrano told him that “after talking with Scott Thomas and the HR department that my employment with DirecTV . . . was being terminated.” He was given another Employee Consultation Form. The form, dated July 28, contains the identical language as the July 21 form, except the “Corrective Action” portion of the form notes, “Termination of Employment,” and the “Action Plan” portion notes, “Discharge . . . 7/28/2010.” Operations Manager Frederico Zambrano16 is the highest- ranking management official at the Riverside facility, and has worked at the Riverside facility in this capacity since August 2008. At the time of the incident there were between 80 to 90 employees at the Riverside facility, including five installer teams. Each team is headed by a field supervisor, and consists of about 15 installers. When initially asked whether employees used profanity in the workplace, Zambrano testified, “Not that I was aware of.” Later during his testimony, however, Zambrano agreed that “employees use profanity in the workplace but they don’t direct it at a supervisor in this fashion.”17 While Zambra- no testified he did not use profanity in talking to employees as he interfaced with them in work areas, he agreed that behind closed doors he more than once has used profanity while talk- ing with individual employees. Zambrano testified that he liked Edmonds just as well as he liked all of his employees, and understood their frustrations with having to stand in line. Describing the incident, Zambrano testified that Edmonds was “uptight, he was pretty much screaming/yelling out loud.” Asked what it was that caused him to think Edmonds had violated company policy, Zambrano replied, “[H]e had cursed at me in front of other employees.” Zambrano prepared the employee consultation form immediate- ly after the incident. When he suspended Edmonds the follow- ing day, Edmonds apologized, saying that “he was sorry and he knew he was wrong,” and that “he knew he could have just came to me and talked behind closed doors and he could have, you know, probably got his point across better.” Zambrano did not deny Edmonds’ testimony that during a subsequent meeting shortly thereafter, before Edmonds left the premises and was driven home, Zambrano specifically told Edmonds he would not be terminated and would be returning to work after his sus- pension period. Eber Urrutia, currently an installer and formerly a supervi- sor, has worked for the Respondent for approximately 8 years. He was called as a witness by the General Counsel. Urrutia testified installers would grumble among themselves on a daily basis and would also complain to supervisors about having to 15 While not entirely clear, it appears that this constituted a 4- or 5- day suspension, although Edmonds understood it to be a 3-day suspen- sion. 16 This position is also referred to as site manager. 17 Zambrano, generally, did not impress me as a credible witness, and frequently gave succinct responses to leading questions in a manner that he believed would be most beneficial to the Respondent’s position, regardless of their accuracy. wait in line each morning to receive their equipment. The complaining diminished after the move to the Myers Street facility,18 but did not stop. Urrutia testified that at the time of the July 21 incident there were approximately 50 or 60 employees in line for supplies. They were talking, and the noise level was high. Edmonds was some 10 to 15 feet from Zambrano when he asked him, “What are you going to do about this f–cking line,” and “kept cussing, to be honest with you.” Zambrano didn’t say much, but “his face was in shock.” Urrutia testified he was surprised Edmonds would make such a remark in front of Zambrano. He was not surprised to learn that Edmonds would be disciplined for his conduct, as this was simply not the appropriate way to talk to the manager. Zambrano testified that although termination decisions were his to make, his boss, Regional Operations Director Scott Thomas, had to be “advised” of termination decisions, and that Human Relations Generalist Marianne Hamada had to be con- tacted. As noted above, during the July 22 consultation and suspen- sion interview, Edmonds told Zambrano that “he was sorry and he knew he was wrong.” After that interview and suspension, Zambrano again phoned Hamada and reported what had tran- spired, telling her that Edmonds had apologized; he also told her that he had reviewed Edmonds’ file and that he was “on a final and had been written up.” Zambrano testified that at this point he had not yet decided whether to terminate Edmonds, and did not make the determination to discharge Edmonds until the following day, July 23.19 Zambrano also testified that even if there were no other warnings in Edmonds’ file, he “probably” would have still fired Edmonds for this one incident, and that Edmonds’ prior history and “final” warning, infra, “definitely” played a role. According to Zambrano, a final warning “basi- cally means that [an employee is] on his final incident and any other incident moving forward can be grounds for termina- tion.”20 Edmonds, who had worked for the Respondent since No- vember 2007, had been issued a number of Employee Consulta- tion or Corrective Action forms during the course of his em- ployment. The warnings or other corrective action incidents prior to July 21 generally involved technical performance- related matters in the field. None of the write-ups involved insubordination toward management, or interaction difficulties with coworkers or customers. 18 While Urritia did not so specifically testify, this was apparently because the employees understood that when the new locker system was in place there would be no more waiting. 19 I do not credit Zambrano, and find, infra, that in fact he had decid- ed not to discharge Edmonds over this incident. 20 The record shows that the Respondent’s disciplinary procedure is not “progressive” in the sense that a subsequent discipline must be more stringent than a prior discipline. Neither the Respondent’s proce- dure nor practice mandated any particular disciplinary action, and the degree of discipline, if any, was entirely within Zambrano’s discretion. Moreover, contrary to Zambrano’s testimony, there is no showing that “final” warnings are followed by terminations; rather, suspensions, verbal warnings, or written warnings seem to follow final warnings. DIRECTV U.S. DIRECTV HOLDINGS 561 Edmonds’ writeups are as follows. On March 20, 2008, he was cited for failing to bring a job up to code; the form shows he was given both a “written” and “final” warning although there is no showing that he had ever received a previous warn- ing of any kind for any reason. On February 5, 2009, he was cited for not properly grounding an installation, and given a “written” warning. On March 20, 2009, he was cited for using existing cable on a new install rather than new cable, and given a “final” warning. On September 6, 2009, he was given a “written” warning for failing to replace all unapproved con- nectors creating a repeat service call. On about November 9, 2009, a person called the facility giving Edmonds’ van number, and reported a tailgating incident; Edmonds was given a “ver- bal warning.” On January 6, Edmonds was cited for complet- ing a Satellite installation that did not meet company standards; he was given a “final” warning and the form notes, “You will be suspended for 2 days.” On January 21, he was “suspended pending investigation” for failing to precall customers; there is no showing that he was given a warning of any kind.21 On March 12, he was cited for failing to completely fill in his time- sheet and was given a “verbal” warning. At the time of the foregoing writeups or counseling interviews, Edmonds agreed with or did not dispute some of them, and did dispute others. Edmonds testified that he would stop by Zambrano’s office on a daily basis just to say hi. About 2 weeks prior to his dis- charge he stopped by Zambrano’s office to perhaps get a pat on the back for having a high performance rating as reflected in an “Employee Breakdown Sheet” that had been given to him. He was pleased about having earned a high rating in the category dealing with “hooking up the phone lines of the customer to our equipment.” He showed the document to Zambrano, who told him that now that he was certified for “Wild Blue” internet installations he would be given a raise; the raise was to the highest level of pay an installer could earn.22 As noted, in addi- tion to being at the top of his pay scale as an installation techni- cian or installer, Edmonds was one of several individuals who would also be utilized as a service technician. Service techni- cians earn a higher rate of pay than installers, and, according to Zambrano, the position of service technician is considered to be a “higher” classification than that of an installation technician. Edmonds testified that in May, Zambrano suggested that he apply for the position of field supervisor, as there was an open- ing. The application, dated May 27, was signed by Edmonds; however he decided not to submit it as he was told by a former supervisor, currently a technician, that technicians, on an hourly basis, made more money than supervisors given the amount of hours supervisors had to work. Zambrano denied that he told Edmonds he should apply for a job as a field supervisor. He testified that he would not have done so because of Edmonds’ prior write-ups, and because he did not think Edmonds would be a good supervisor as he “just wasn’t a good performer.”23 21 According to Edmonds’ testimony he was suspended over this in- cident after which he returned to work; the number of day(s) of his suspension is not stated. 22 Zambrano did not deny this testimony of Edwards. 23 I credit Edmonds’ testimony and find that in fact Zambrano did suggest that he apply for the supervisory position. Regarding Edmonds’ performance, there is no showing that at the time of the July 21 incident the number or quality of Ed- monds’ installations was below par. He had not received a further Corrective Action Form reflecting performance issues since January 17, supra. Further, documentary evidence shows that he ranked well above average in “customer satisfaction.” Customer satisfaction is evaluated each pay period. A report dated March 8, shows Edmonds’ customer satisfaction score as 100 percent, and his past 12-month score as 100 percent, whereas the average site score for all the Riverside installers was 89 and 89.22 percent, respectively. A more current report, dated June 29, shows Edmonds’ customer satisfaction score as 100 percent for the past 90 days, and 98.67 for the past 12 months, while the average site score for all Riverside installers was 89.56 and 89.56, respectively. Zambrano testified that during his tenure as operations man- ager the only other employee who used profanity against a supervisor or manager was also discharged. That employee was John Barrios, who was discharged for insubordination in May 2009. Barrios’ Employee Consultation form states that Barrios and other installers were told they would not be issued a gas card for their van unless they were wearing their reflec- tive safety vest. Barrios, who was not wearing his vest, ap- proached his supervisor for his gas card, and was told to return to his van for the vest before he would be issued a gas card. Barrios responded that he did not have to put it on, saying, “this is bullsh–t.” He then returned to his van, put on his safety vest, and again approached the supervisor “and continued to be very confrontational and disrespectful, stating ‘I don’t play around like that, I’m a grown ass man.’” He then “snatched the gas card from [the supervisor’s] hand and proceeded to pump gas.” The form goes on to state: “This is considered insubordination and it is a violation of DirecTV Home Services personnel poli- cies and procedures.” Barrios was suspended pending investi- gation. After being presented with the Employee Consultation form later that day, which he refused to sign, he was told by his supervisor to move his van to the warehouse so his equipment could be inventoried. Barrios said he would not give up his van without receiving a copy of the Employee Consultation form. He was told that according to company policy he was not enti- tled to a copy of the form unless he signed it. He refused to give up his keys. According to the memorandum written by a su- pervisor, “Site Manager Freddy Zambrano then came out to see what the problem was and [Barrios] told [Zambrano] the same thing.” Barrios continued to refuse to give up his keys and stat- ed that he, Barrios, would call the police. In fact, Zambrano called the police and Barrios gave up his keys to the van.24 Clearly, the above scenario surrounding the termination of Barrios, who directly defied his supervisor’s orders, is unlike and readily distinguishable from the facts in the instant matter. 2. Analysis and conclusions Both the General Counsel and the Respondent rely on the analytical framework set forth in Atlantic Steel Co., 245 NLRB 814 (1979), to balance an employee’s use of profane and insub- 24 Zambrano testified that he was “pretty sure” Barrios’ file reflected previous performance-related incidents, but he did not specify the dates or nature of such incidents. 562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ordinate comments, uttered during the course of concerted ac- tivity, with “an employer’s right to maintain order and respect in the workplace.” Piper Realty Co., 313 NLRB 1289, 1290 (1994). The General Counsel maintains that Edmonds’ activity in protesting working conditions was clearly protected concert- ed activity, and that his use of profanity, under the circum- stances, did not remove his conduct from the protection of the Act. The Respondent maintains that Edmonds’ outburst was not concerted, as he was protesting not on behalf of others but ra- ther on his own behalf; nor was his conduct protected, as his use of profanity toward Zambrano, under the circumstances, exceeded the bounds of permissible conduct. I find no merit to the Respondent’s contention that Edmonds was not engaged in protected concerted activity. The record clearly shows, and Zambrano acknowledged, that having to wait in line to get materials each morning was a significant matter of concern to all the installers. The daily waiting in line, the absence of an organized line, and the fact that the disorgan- ization necessarily resulted in an even longer wait and added frustration for some employees, are inseparable elements of one overriding, common grievance. The failure or delay of the Re- spondent to put in place an appropriate system to resolve the underlying problem, whatever parts of the problem individual employees may have found most annoying, was admittedly an ongoing concern to all the installers, and clearly Edmonds was not speaking solely for himself in imploring Zambrano to do something about the situation. The four factors to be balanced as set forth in Atlantic Steel, supra, are as follows: the place of the “discussion”; the subject matter of the discussion; the nature of the employee’s outburst; and whether the outburst was, in any way, provoked by an em- ployer’s unfair labor practice. Moreover, relative weight is to be given to each of the four factors. The “discussion” took place in a workplace setting in the presence of some 40 or 50 employees, and Edmonds’ com- ments were likely overheard by many if not all of the employ- ees; while the underlying subject matter of the discussion was clearly a longstanding matter of legitimate concern to all em- ployees, this should be tempered with the fact that the employ- ees had previously been made aware that the problem would likely be resolved in a few days; Edmonds uttered profanities 25 in conjunction with his questioning Zambrano about when Zambrano was going to perform his job as manager by doing something about the employees’ complaint, and this, I con- clude, would tend to diminish Zambrano’s status and authority in the eyes of the other employees and have a deleterious effect on his “right to maintain order and respect in the workplace”;26 25 The record shows that employees, supervisors, and managers alike used profanity in the workplace. The record does not show, however, any prior instances of employees cussing out supervisors or managers in the workplace, in the presence of other employees, for failing to do the job that employees expected them to do. Accordingly, while there is precedent for the Respondent’s acceptance of profanity in the work- place, there is no precedent for the Respondent’s acceptance of profane outbursts in the workplace toward management. 26 Piper Reality, supra; Verizon Wireless, 349 NLRB 640, 642 (2007) (profane references would necessarily have drawn attention and had a destructive effect on workplace discipline). and finally, Edmonds’ outburst was not provoked in any way by Zambrano. Thus, from the foregoing, I conclude that each of the Atlantic Steel factors weighs in favor of the Respondent’s contention that Edmonds’ remarks removed him from the pro- tection of the Act. The complaint also alleges that Edmonds was suspended and discharged because of his union activity. The Respondent’s opposition to unionization is clear from the record evidence and, contrary to Dimech’s testimony, it is clear from the re- marks Dimech made during his meeting with the Riverside employees that he was not there simply as a “courtesy” to up- date them on the union election at the Rancho Dominguez facil- ity. Rather, I find, he was there to keep the Union’s efforts at Rancho Dominguez from spreading to the Riverside facility, or to stop a union campaign that he believed had already begun.27 Edmonds directly challenged Dimech at the meeting, and let Dimech, Zambrano, and everyone else know, in no uncertain terms, that he did not believe any significant concerns of the employees could be resolved absent representation by a union. Then, at Edmonds’ van, when Dimech sought to let Edmonds know that his concerns would be immediately addressed, Ed- monds remained unconvinced and continued to profess the need for union representation. Dimech said that other benefits would be forthcoming when the union situation in Rancho Dominguez was resolved, gave Edwards his business card, and told Edmonds to call him if there was anything else he could do for Edmonds.28 A few days later not only was the San Diego matter resolved by giving a raise to the San Diego installers, but also Edmonds was called personally by Dimech to give him the news. At about the same time, on about the first workday after the Dimech meeting, Zambrano told Edmonds that all of his jobs would be QC’d. I find that in fact Zambrano made this state- ment; and I further find that, absent any other apparent reason or motivation, it was said in direct response to Edmonds’ pro- union remarks at the Dimech meeting. Thus, Zambrano warned Edmonds that his work was to be monitored as a result of his protected concerted and/or union activity. To summarize, the record abundantly shows the Respond- ent’s antipathy toward unionization, and the Respondent’s awareness of Edmonds’ forceful defense of unions in general and his proclivity to speak up in front of employees and man- agers alike as an articulate advocate of his position. Moreover, I have found that as a result of his prounion remarks he received a warning from Zambrano that his work was to be watched. Then, on July 22 he was suspended for his July 21 outburst, and on July 28 he was terminated. 27 There is no clear record evidence that the Respondent was aware of the union activity taking place at the Riverside facility. 28 The Respondent maintains that the Dimech meeting took place on May 22, and the General Counsel places the meeting sometime in June. The date of the meeting is unclear and there is evidence to support either position. I conclude that under the circumstances it is unneces- sary to determine whether the Dimech meeting took place in May or June. DIRECTV U.S. DIRECTV HOLDINGS 563 Accordingly, all of the elements under Wright Line29 have been established to shift the burden of proof to the Respondent to show that Edmonds would have been both suspended and discharged even absent his protected concerted and/or union activity flowing from his comments at the Dimech meeting. Assuming arguendo that the Respondent had a legitimate rea- son for merely suspending Edmonds as a result of his July 21 outburst, I find that the Respondent has not met its burden of establishing that Edmonds was also discharged for his July 21 outburst. From the date of the Dimech meeting until July 22, Edmonds was never disciplined for work performance or any other rea- son.30 On July 22, the day he was suspended for his July 21 outburst, Edmonds apologized during one or both of his con- versations with Zambrano, and said he knew he had been out of line. And before he left the premises that day he specifically asked Zambrano whether he would be terminated. Zambrano pointedly replied that he would not be terminated, and would be returned to work at the end of his suspension. This comports with the July 21 Employee Evaluation form Zambrano present- ed to Edmonds. The form does not state that Edmonds was simply suspended, or suspended pending investigation, but rather states that he would be suspended until July 28, a date certain. Accordingly, it is abundantly clear, and I find, that Zambrano had already decided on July 21, shortly after the incident, as he prepared the Employee Evaluation form, that Edmonds would be suspended but would not be discharged for his outburst. This finding further establishes that at the time Zambrano decided to suspend but not discharge Edmonds, Zambrano was either aware of Edmonds’ prior work history, or that Edmonds’ prior work history simply did not matter to Zambrano; in either event, Zambrano had determined that Edmonds would not be discharged regardless of his work history.31 Thus, when Ed- 29 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st. Cir. 1981), cert. denied 455 U.S. 989 (1982). 30 The Respondent maintains that Zambrano harbored no animus against Edmonds as exhibited by Zambrano’s failure to discipline Ed- monds for two incidents that occurred between the time of the Dimech meeting and Edmonds’ July 22 suspension. One incident occurred in late May and the other in June. One involved a minor auto accident for which it was determined that Edmonds clearly was not at fault, as the other driver admitted fault. The other involved a complaint by a cus- tomer. Edmonds was suspended pending investigation of this incident, and Zambrano determined that the customer complaint was unwarrant- ed as clearly demonstrated by records, namely Edmonds’ telephone log, which conclusively showed that, contrary to the customer’s conten- tions, he had in fact contacted the customer in a timely manner. As a consequence, Edmonds was absolved of the infraction and reimbursed his wages for the day(s) of his suspension. The fact that Edmonds re- ceived no discipline for these incidents does not show that Zambrano was lenient or fair with Edmonds; rather, it is clear that Zambrano simply had no supportable rationale for imposing discipline, as the documents precluded any reliance upon subjective considerations. 31 Indeed, not only had Edmonds received no adverse counseling forms for the 5 months or so prior to his suspension, but also he had received 100 percent on current customer satisfaction statistics, well exceeding the average customer satisfaction statistics of the Riverside installers for the preceding year. In May, Zambrano suggested to him that he apply for an open supervisory position. And about 2 weeks prior monds asked Zambrano whether he was going to be discharged, Zambrano was not noncommittal, and did not reply that he didn’t know or that he intended to review Edmonds’ file during his suspension. Rather, he unequivocally answered, “no,” add- ing that Edmonds would be returned to work following his suspension. There is no contrary evidence. It follows, therefore, that someone intervened between July 22 and 28, to cause Zambrano to change his mind and convert the suspension to a termination. I do not credit Zambrano’s testimony to the extent it suggests or implies that he did not have his mind made up not to discharge Edmonds when he issued the July 21 counseling form, or that his review of Ed- monds’ personnel file was the determinative factor in making his decision to discharge Edmonds. During their July 28 con- versation Zambrano said nothing to Edmonds about his em- ployment history or that he was on a final warning. Rather, he implicated others by telling Edmonds that after talking with Scott Thomas—Zambrano’s boss and Dimech’s subordinate— and the HR department, it had been determined that his em- ployment was being terminated. And while Zambrano testified he advised HR that he had reviewed Edmonds’ file, he did not testify whether or not he already knew or even cared what was in Edmonds’ file before he allegedly reviewed it. To summa- rize, the Respondent has neither admitted that Zambrano had a change of mind after issuing the July 21 suspension notice, as the evidence shows and I have found; nor has the Respondent affirmatively demonstrated that whatever it was that caused Zambrano to change his mind and convert Edmonds’ suspen- sion to a discharge was not motivated by unlawful considera- tions. Thus, the Respondent has failed to show that Edmonds would have been discharged, rather than merely suspended, as a result of his July 21 outburst. On the basis of the foregoing, I find that the Respondent has not satisfied its burden under Wright Line, supra, to show that Edmonds would have been discharged for the July 21 outburst even absent his protected concerted and/or union activity. Ac- cordingly, I find that Edmonds was discharged in violation of Section 8(a)(1) and (3) of the Act as alleged. C. Respondent’s Handbook; Respondent’s DirecTV Policy Communications, Public Relations, and Corporate Events Document 1. Facts The complaint alleges and the Respondent admits that on or about May 22, 2010, by distributing to employees a handbook, entitled “Home Services Employee Handbook,” Respondent promulgated and since then has maintained the following rules: 2.4 Use of Company Systems, Equipment, and Resources Occasional and reasonable personal use of company property is permitted. Examples of reasonable use include use that is moderate and appropriate in duration and frequency, use that to his suspension he received a high performance rating for internet installations, and was given a raise by Zambrano, at which point he was elevated to the highest level of pay an installer could earn. Zambrano did not explain what motivated him to ignore or discount these current positive factors, and instead rely upon Edmonds’ past discipline, in determining whether Edmonds should be discharged. 564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD does not involve obscene or questionable subject matter, use that does not conflict with the company’s Anti- discrimination/Harassment and/or conflict of interest policies, and use that is not in support of any religious, political, or out- side organization activity. 3.4 Communications and Representing DIRECTV To ensure the company presents a united, consistent voice to a variety of audiences, these are some of your responsibilities related to communications:  Do not contact the media, and direct all media inquir- ies to the Home Services Communications depart- ment.  If law enforcement wants to interview or obtain in- formation regarding a DIRECTV employee, whether in person or by telephone/email, the em- ployee should contact the Security department in El Segundo, Calif., who will handle contact with law enforcement agencies and any needed coordi- nation with DIRECTV departments. 4.3.1 Confidentiality Never discuss details about your job, company business or work projects with anyone outside the company, especially in public venues, such as seminars and conferences, or via online posting or information-sharing forums, such as mail- ing lists, websites, blogs, and chat rooms Never give out information about customers or DIRECTV employees. In particular, customer information must never be transmitted through regular unencrypted email, even in- ternally within DIRECTV. If you have additional questions regarding data transmission guidelines, check with the IT department. The complaint alleges and the Respondent admits that since at least on or about July 1, 2010, Respondent has maintained, in the DirecTV Policy Communications, Public Relations, and Corporate Events document, the following rules: Employees Employees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record. Public Relations Employees must direct all media inquiries to a member of the Public Relations team, without exception. Employees should not contact or comment to any media about the company un- less pre-authorized by Public Relations. These rules are in place to ensure that the company communications [sic] a con- sistent message and to ensure that proprietary information is not released. Following the issuance of the complaint the Respondent posted on its bulletin board at the Riverside facility the follow- ing Memo, on company letterhead, from Adrian Dimech, dated May 9, 2011, regarding DTVHS employee handbook and com- pany Policies: The purpose of this memo is to clarify to you the intent of DTVHS in enforcing the policies set forth in the DTVHS em- ployee handbook and those company policies posted on the DEN.32 Employee Handbook The policies contained in the DTVHS Employee Handbook previously distributed to you (including but not limited to confidentiality, using social media) will not be used to prohib- it, discourage, or otherwise retaliate against employees who engage in conduct or communications protected by Section 7 of the National Labor Relations Act (such as lawful discus- sions whether with co-workers or third parties about wages, hours or working conditions.) Company Policies The company policies posted on the DEN (including but not limited to confidentiality, using social media) will not be used to prohibit, discourage, or otherwise retaliate against employ- ees who engage in conduct or communications protected by Section 7 of the National Labor Relations Act (such as lawful discussions whether with co-workers or third parties about wages, hours or working conditions.) If there should be any questions regarding this, please see your Human Resource Representative. The Respondent also posted on the DEN the following an- nouncement: REFERENCE> Policies and Procedures Employee Handbooks Refer to the version of the handbook for your business unit. Refer to the DEN and other resources for the most up-to-date content from the printed copy of the handbook you received during new hire orientation. The policies contained in the Employee Handbooks set forth below, will not be used to prohibit, discourage, or otherwise retaliate against employees who engage in conduct or com- munications protected by Section 7 of the National Labor Re- lations Act (such as lawful discussions whether with co- workers or third parties about wages, hours or working condi- tions.) . . . . Company Policies Company policies apply to all DIRECTV employees regard- less of in which department or business unit an employee works. For a particular business unit’s (Enterprise, Customer Care or Home Services) or department’s procedures and rules, see the appropriate section on this page. The Company policies that follow will not be used to prohibit, discourage, or otherwise retaliate against employees who en- gage in conduct or communications protected by Section 7 of the National Labor Relations Act (such as lawful discussions 32 The “DEN” is the Respondents’ intranet network through which all of Respondents’ employees, nationwide, are kept current on compa- ny matters. DIRECTV U.S. DIRECTV HOLDINGS 565 whether with co-workers or third parties about wages, hours or working conditions.) Anti-discrimination/Harassment Communications, Public Relations and Corporate Events Company-paid Business Expenses for visitors Compliance with Export/Import Laws and Regulations 2. Analysis and Conclusions There is no contention that the Respondent has promulgated or enforced the foregoing provisions in the employee handbook (handbook), or the DirecTV Policy Communications, Public Relations, and Corporate Events document (Policy document), for the purpose of inhibiting lawful union or protected concert- ed activity. However, it is alleged, and the General Counsel maintains, that each of the foregoing provisions are unlawful on their face as employees who may desire to engage in union or protected concerted activity, or have contact with the Board or Board agents, would be reluctant to do so if such activity or conduct would reasonably seem to be prohibited by any of the foregoing provisions. The Respondent maintains the provisions are not unlawful on their face and, moreover, that no violation should be found as the Respondent, since the issuance of the complaint, has adequately advised its employees that the provisions should not be understood to inhibit lawful activity protected by the Act. I find that handbook provisions 3.4 Communications and Representing DIRECTV, and 4.3.1 Confidentiality, are unlaw- ful on their face, as they would reasonably tend to inhibit union or protected concerted activity by precluding employees from discussing wages, hours, and working conditions with employ- ees and others, including union representatives, by precluding employees from contacting or conferring with representatives of the media, and by causing employees to be reluctant to con- tact the Board or deal with Board agents. See generally Fla- mingo Hilton-Laughlin, 330 NLRB 287 (1999); Lafayette Park Hotel, 326 NLRB 824 (1998). I find that Policy document provisions titled “Employees and Public Relations” are unlawful on their face as they would rea- sonably tend to inhibit union or protected concerted activity by precluding employees from discussing wages, hours, and work- ing conditions with employees and others, including union representatives, through the internet and by other means, and by precluding employees from contacting or conferring with repre- sentatives of the media. Ibid. I further find, contrary to the Respondent’s contention, that the Respondent’s disclaimers and corrective action are insuffi- ciently specific and/or would be overlooked by employees reading the particular provisions in the written documents to warrant a dismissal of the pertinent compliant allegations. See, generally Passavant Memorial Area Hospital, 237 NLRB 138, 899 (1978). However, under the circumstances, I do not believe that, as contended by the General Counsel and the Union, the provisions found to reasonably contain impermissible re- strictions on employees’ Section 7 rights should be entirely expunged from the relevant documents. The Respondent is a nationwide employer with several business units and many thousands of employees. To require the Respondent to remove the relevant provisions may unduly interfere with legitimate employer prerogatives. Further, as noted in the Respondent’s brief, it has attempted in good faith to resolve this matter through its various postings. It would appear most appropriate for the parties to explore modifications of the language or other alternatives during the compliance stage of this proceeding. Accordingly, the remedial action to be taken will be relegated to the compliance stage of this proceeding. Regarding handbook provision 21.4 Use of Company Sys- tems, Equipment and Resources, the General Counsel maintains that even though the Respondent prohibits “use of company property,” namely company systems, equipment, and resources, which includes the Respondent’s email system, for purposes “of any religious, political, or outside organizational activity,” this blanket prohibition should be found impermissible regard- ing Section 7 activity as it unduly restricts union and protected concerted activities. The General Counsel, citing Register Guard, 351 NLRB 1110 (2007), acknowledges that the Board has recently resolved this issue. I agree. I shall dismiss this allegation of the complaint.33 CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has violated Section 8(a)(1) and (3) of the Act as found. THE REMEDY Having found that the Respondent has violated and is violat- ing Section 8(a)(1) and (3) of the Act, I recommend that the Respondent be required to cease and desist from discharging employees in violation of the Act, and from promulgating and maintaining in effect certain employee handbook and other policy provisions that preclude and interfere with the Section 7 rights of employees to engage in union and protected concerted activity. Specifically, to remedy the unlawful discharge of em- ployee Gregory Edmonds, I recommend the Respondent offer him immediate reinstatement to his former position of em- ployment, and make him whole for any loss of earnings, includ- ing piecework wages, and other benefits lost as a result of his July 28, 2010 discharge, computed on a quarterly basis from July 28, 2010 to the date of a proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Hori- zons for the Retarded, 283 NLRB 1173 (1987). Interest on amounts due to Gregory Edmonds shall be compounded on a daily basis as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). I further recommend that the Respondent be required to remove from its files any reference to the July 28, 2010 discharge. I further recommend that the Respondent be required to cease and desist from in any other like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. Mat- ters pertaining to the employee handbook and other documents 33 The General Counsel maintains that Republic Aviation, 324 U.S. 793, 803 fn. 10 (1945), warrants a different result. This is a policy matter to be addressed to the Board. 566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD shall be relegated to the compliance stage of this proceeding. Finally, I shall recommend the posting of an appropriate notice, attached hereto as “Appendix.” [Recommended order omitted from publication.]