Philips Electronics North America Corporation

PHILIPS ELECTRONICS NORTH AMERICA 189 Philips Electronics North America Corporation and Lee Craft. Case 26–CA–085613 August 14, 2014 DECISION AND ORDER BY MEMBERS MISCIMARRA, JOHNSON, AND SCHIFFER On June 13, 2013, Administrative Law Judge Margaret G. Brakebusch issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Respondent filed an answering brief, and the General Counsel filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions only to the extent consistent with this Decision and Or- der. The General Counsel alleged that the Respondent vio- lated Section 8(a)(1) by (1) maintaining a rule that disci- pline is confidential and prohibiting employees from sharing or discussing their discipline with their cowork- ers; and (2) discharging employee Lee Craft because of his protected activity; specifically, sharing and discuss- ing his discipline with his coworkers. The judge dis- missed both of the allegations. As discussed below, we reverse and find that the Respondent did maintain an unlawful confidentiality rule.2 1 The General Counsel has excepted to some of the judge’s credibil- ity findings. The Board’s established policy is not to overrule an ad- ministrative law judge’s credibility resolutions unless the clear prepon- derance 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 There are no exceptions to the judge’s findings that Craft engaged in protected activities and that the General Counsel met his initial bur- den under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Mgmt. Corp., 462 U.S. 393 (1983), of showing that those activities were a motivating factor in Craft’s discharge. The judge then found that the Respondent established its affirmative de- fense under Wright Line by showing that it would have discharged Craft even in the absence of his protected activities. For the reasons stated by the judge, we agree with this finding, and we adopt her dis- missal of the allegation that the Respondent violated Sec. 8(a)(1) by discharging Craft. No party contends that Wright Line is not the appro- priate analysis here. After the judge concluded her Wright Line analy- sis, however, she went on to find that Craft’s discharge was also lawful under NLRB v. Burnup & Sims, 379 U.S. 21 (1964). Assuming arguen- do that Burnup & Sims is applicable here, we agree that a violation would not be established under that standard, either. Because no exceptions were filed to the judge’s finding that the General Counsel met his initial burden under Wright Line, Member Schiffer observes that there is no need to address the judge’s reliance on American Gardens Management, 338 NLRB 644, 645 (2002). See Mesker Door, 357 NLRB 591, 592 fn. 5 (2011). I. FACTS Craft worked for the Respondent for several years. During his tenure with the Respondent, he received nu- merous oral and written warnings—as well as a demo- tion—for performance deficiencies and acts of miscon- duct, including repeatedly harassing and intimidating his coworker, Kim Coleman. On January 16, 2012,3 the Respondent decided to discharge Craft for his disruptive, intimidating, and offensive behavior toward Coleman and others. After looking into the matter further, howev- er, the Respondent determined that, for administrative reasons, it had to give Craft a final written warning in- stead of discharging him. On January 20, the Respondent gave Craft a final writ- ten warning citing Craft for inappropriate behavior, vio- lation of company policy/procedures, and unsatisfactory performance. More specifically, the warning stated that Craft had engaged in “highly disruptive behavior” during preshift meetings and “harassing and intimidating con- duct” towards colleagues and management. The warning also stated that several employees reported feeling “threatened” by Craft. Finally, the warning referred to two recent performance deficiencies and stated that if Craft engaged in any further inappropriate behavior, the Respondent would terminate him immediately. In addi- tion to issuing Craft this warning, the Respondent trans- ferred him to another department and instructed him to stay away from Coleman’s work area. Four days later, employees Coleman and Thelma Hal- bert notified the Respondent that Craft had violated the stay-away instruction and had engaged in acts of disrup- tion and harassment. Specifically, Coleman told Re- spondent’s Regional Distribution Center Manager Sherry McMurrian that Craft drove his forklift into Coleman’s work area and, while seated 10 feet away from Coleman, directed various comments toward her. Coleman also reported that Craft showed his disciplinary warning to other employees and loudly stated that he had received the warning because of Coleman’s harassment allega- tions. Other employees confirmed that Craft had shared his disciplinary warning with them. To document her conversations with Coleman and oth- er employees, McMurrian prepared a file summary dated January 24. In relevant part, the file summary states that Coleman and Halbert reported to McMurrian that Craft was showing his disciplinary form to employees, and that Craft told other employees that he had been disciplined based on Coleman’s accusations that he had harassed her. McMurrian wrote, “These employees are aware that disciplinary forms are confidential information and 3 All dates refer to 2012. 361 NLRB No. 16 190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD should not be shared on the warehouse floor, at any time, much especially [sic] during working hours.” She added, “Kim [Coleman] stated that [Craft] was purposely show- ing the write-up which he knows is confidential infor- mation. . . .” On January 25, the Respondent discharged Craft and provided him with a discharge notice that states: Lee Craft is being terminated effective immediately due to disrupting the operation and sharing confidential documentation and information during working hours and continu[ing] to use intimidating language towards management. Lee received a final written disciplinary notice warning against these exact behaviors on 1/20/12. Lee requested a copy of the write up and was informed of the confidentiality of the discussion and form during the meeting. II. DISCUSSION The General Counsel alleged that the Respondent, since January 19, has unlawfully maintained a rule that discipline is confidential and that prohibited employees from discussing their discipline with their coworkers. The General Counsel based his allegation on language in the above-mentioned file summary and discharge notice, contending that those documents demonstrate that such a rule dithatd in fact exist and was therefore being unlaw- fully maintained, even though the Respondent had never formally promulgated such a rule.4 The judge found the General Counsel’s argument in support of the allegation unpersuasive. First, the judge determined that, even though the file summary referred to Craft’s showing his disciplinary warning to some of his fellow employees, McMurrian included this infor- mation not because the Respondent prohibits discussion of discipline, but because Coleman was disturbed that Craft was broadcasting his warning to others and blam- ing her for it. Next, the judge found equally unpersua- sive the references to confidentiality in the January 25 discharge notice. Here, the judge found that Craft raised the issue of confidentiality, and that the Respondent as- sured him that it would maintain the warning’s confiden- tiality. The judge also observed that the Respondent did not tell Craft that he could not discuss his discipline with others. Thus, the judge essentially found that McMurrian added the reference to confidentiality in the January 25 discharge notice merely to reflect that Craft had been assured of the confidentiality of the January 20 warning, 4 The Respondent does not have a written policy stating that disci- pline is confidential or prohibiting employees from discussing or shar- ing their discipline with their coworkers. McMurrian testified that such a rule does not exist. and that the reference was therefore not evidence of a rule prohibiting employees from discussing their disci- pline. In sum, the judge found that the wording in the file summary and discharge notice was insufficient to establish that the Respondent “told employees . . . that they were prohibited from sharing and/or discussing their discipline with coworkers as alleged in [the] complaint . . . .” We reverse the judge’s dismissal of this allegation. As the Board has previously stated, “[i]t is important that employees be permitted to communicate the circum- stances of their discipline to their co-workers so that their colleagues are aware of the nature of discipline being imposed, how they might avoid such discipline, and mat- ters which could be raised in their own defense.” Veri- zon Wireless, 349 NLRB 640, 658 (2007). An employer violates Section 8(a)(1) when it prohibits employees from speaking with coworkers about discipline and other terms and conditions of employment absent a legitimate and substantial business justification for the prohibition. See, e.g., Lucky Cab Co., 360 NLRB 271, 277 (2014); SNE Enterprises, 347 NLRB 472, 491–492 (2006), enfd. 257 Fed.Appx. 642 (4th Cir. 2007); Caesar’s Palace, 336 NLRB 271, 272 (2001). The General Counsel argues that the judge’s analysis of the file summary and discharge notice was mistaken. We agree and find that, notwithstanding the fact that the Respondent did not have a written rule about discussing discipline, language in the file summary and the dis- charge notice, reasonably construed, establish that the Respondent was unlawfully maintaining a rule prohibit- ing employees from discussing their discipline. First, by her language in the file summary of January 24, McMurrian effectively admitted the existence of such a rule. McMurrian wrote, “These employees are aware that disciplinary action forms are confidential and should not be shared on the warehouse floor at any time . . . .” Even if, as the judge found, Coleman raised the issue of confidentiality with McMurrian, McMurrian refers here to a prohibition that both already existed and applied to “forms” in general—if only in the mind of management. See Jeannette Corp. v. NLRB, 532 F.2d 916, 919 (3d Cir. 1976) (enforcing the Board’s finding that an “unwritten policy apparently framed only in the minds of the com- pany officials” was unlawful). There would be nothing for employees to be “aware” of if the Respondent were not maintaining such a rule, nor would Respondent have referred to “forms” in general unless there were a gener- alized rule relating to those forms. McMurrian also re- ferred to Coleman’s report that Craft was purposely showing the write-up to other employees even though he knew it was confidential. This also suggests that the Re- PHILIPS ELECTRONICS NORTH AMERICA 191 spondent was maintaining a rule prohibiting such con- duct. In addition, the January 25 discharge notice referred to Craft’s sharing the confidential warning as one of the reasons for his discharge. This indicates that the Re- spondent believed that Craft had breached an existing rule against such behavior.5 It is difficult to see how the Respondent can claim that such a rule did not exist and at the same time cite Craft for violating it. In sum, we find that the Respondent maintained an unwritten rule that discipline was confidential and that prohibited employees from discussing discipline on the warehouse floor at any time, and that this rule violated Section 8(a)(1). ORDER The National Labor Relations Board orders that the Respondent, Philips Electronics North America Corpora- tion, Memphis, Tennessee, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Maintaining a rule that discipline is confidential and prohibiting its employees from discussing or sharing their discipline with their coworkers. (b) 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 after service by the Region, post at its Memphis, Tennessee facility copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- 5 Our colleague contends in his partial dissent that McMurrian mere- ly documented what Coleman told her—i.e., McMurrian’s “observation was based exclusively on a statement by employee Coleman, who advised McMurrian that discipline forms are confidential and should not be shared with others.” We note, however, that the fact that Cole- man believed the Respondent maintained such a policy and that McMurrian never took the opportunity to correct this belief further supports a finding that the Respondent was maintaining an unlawful confidentiality policy. 6 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.” arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since January 2012. (b) Within 21 days after service by the Region, file with the Regional Director for Region 26 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. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. MEMBER MISCIMARRA, dissenting in part. I agree with my colleagues that employee Lee Craft’s discharge did not violate the Act. However, I would also affirm the judge’s dismissal of the allegation that the Respondent maintained a rule prohibiting employees from discussing their discipline with their coworkers. It is undisputed that the Respondent has no written rule prohibiting employees from discussing their discipline. Respondent’s manager McMurrian testified that the Re- spondent does not have such a rule in any form, and the General Counsel failed to present any witness who con- tradicted this testimony. Contrary to the arguments presented by the General Counsel and accepted by my colleagues, I do not believe we can reasonably infer the existence of such a rule from (a) language in the Respondent’s January 24 file sum- mary stating that employees “are aware” that discipline is confidential, and (b) language in Craft’s discharge notice mentioning that Craft shared “confidential documenta- tion” with others. In my view, this evidence fails to es- tablish that the Respondent maintained a confidentiality rule. My colleagues note that the file summary was pre- pared by Distribution Center Manager Sherry McMurrian to document her conversations with one of Craft’s co- employees, Kim Coleman, among others. Although McMurrian’s summary stated “employees are aware that disciplinary action forms are confidential,” the credited evidence reveals (and the judge found) this observation was based exclusively on a statement by employee Coleman, who advised McMurrian that discipline forms are confidential and should not be shared with others. At the hearing, Coleman testified that no one ever told her that discipline was confidential—this was only her as- 192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sumption. Moreover, when Coleman told McMurrian that she (Coleman) believed that Craft was revealing confidential information, the record reveals that McMur- rian did not state or confirm that disciplinary information was confidential. Rather, after being informed of Craft’s disclosure, McMurrian simply asked, “Why would he want to do that?” It is also relevant that, when Craft was given a final written warning for engaging in “highly disruptive” behavior and for harassing and intimidating others, including Coleman, Craft was not told the disci- pline was “confidential.” However, he was lawfully transferred to another department and was directed to stay away from Coleman’s work area (indeed, he was told not even to look toward the area where Coleman was working), and Craft undisputedly disobeyed the “stay away” instruction. Although Craft showed his final warning to co-employees, he advised several of them that he received the warning because of Coleman’s com- plaints, and he stated that he was “untouchable” (while parked in his forklift about 10 feet away from Coleman). None of these facts suggest that Respondent maintained or enforced a rule against the disclosure of disciplinary information, but they clearly establish that Coleman— who was Craft’s co-employee and the object of his re- peated harassment—had ample justification to advise McMurrian that Craft was inappropriately disclosing “confidential” information. The discharge notice contained two references to “con- fidential” information, but the content of the notice— when considered in conjunction with relevant events— likewise fails to establish that Respondent had a rule that prohibited employees from disclosing information about discipline they received. The notice stated: Lee Craft is being terminated effective immediately due to disrupting the operation and sharing confidential documentation and information during working hours and continu[ing] to use intimidating language towards management. Lee received a final written disciplinary notice warning against these exact behaviors on 1/20/12. Lee requested a copy of the write up and was informed of the confidentiality of the discussion and form during the meeting. (Emphasis added.) As noted previously, and as the judge found, Coleman (the co-employee) communicated her be- lief to Respondent that Craft’s final warning was confiden- tial. The evidence also establishes that Craft engaged in a highly objectionable, egregious course of conduct that in- cluded publicly blaming Coleman for his disciplinary warn- ing arising from Coleman’s well-founded complaints about Craft. Although the discharge notice may have been impre- cise when describing Craft’s course of conduct as “sharing confidential documentation and information,” this summary fairly describes Craft’s objectionable actions, and does not establish that Respondent had a policy or rule imposing a blanket prohibition against disclosing discipline. To the contrary, as the judge found, “Craft specifically denied that he was told in the meeting that the disciplinary form was confidential,” and Craft “did not testify that McMurrian or any of the managers told him that he could not discuss his discipline.” As to the final sentence in the discharge no- tice—that Craft “requested a copy of the write up and was informed of the confidentiality of the discussion and form during the meeting”—the judge found, based on the credit- ed testimony, that these were Respondent’s assurances to Craft, at Craft’s request, that the disciplinary warning would remain confidential. Also, in a sworn affidavit, Craft testified that he was not aware of any policy or rule that prohibits an employee from discussing discipline with other employees. In short, this case involves a lawful decision to termi- nate Craft’s employment, based on a course of egregious harassment and intimidating conduct directed towards co-employees and management representatives. Accord- ing to the testimony of the discharged employee himself, Respondent maintained no rule prohibiting the disclosure of discipline, and the employee had never been told he was prohibited from disclosing his discipline to others. At most, the record reveals that the Respondent prepared two documents—an internal file summary memo and Craft’s discharge notice—that made general, imprecise references to “confidential” documentation. Neither of these documents was prepared for distribution to em- ployees generally. Moreover, the judge made specific credibility findings establishing that the “confidential” references in these documents had nothing to do with any rule prohibiting the disclosure of discipline. Not only does the record reveal that Craft engaged in highly objec- tionable conduct, the evidence reveals that Respondent went to significant lengths to act appropriately in relation to Craft’s co-employees and even Craft himself (who received repeated counseling and progressive discipline, including assurances that the Respondent would refrain from indiscriminately disclosing information regarding Craft’s discipline). In these circumstances, we need more record evidence than exists in the instant case to establish that Respondent maintained or imposed some type of prohibition that constituted restraint, coercion or interference with protected rights. Accordingly, as to this issue, I respectfully dissent. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE PHILIPS ELECTRONICS NORTH AMERICA 193 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 maintain a rule that discipline is confi- dential and that prohibits employees from discussing or sharing their discipline with their coworkers. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. PHILIPS ELECTRONICS NORTH AMERICA CORPORATION The Board’s decision can be found at www.nlrb.gov/case/26–CA–085613 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. William T. Hearne, Esq., for the General Counsel. Mason C. Miller, Esq., of Somerset, New Jersey, for the Re- spondent. DECISION STATEMENT OF THE CASE MARGARET G. BRAKEBUSCH, Administrative Law Judge. This case was tried in Memphis, Tennessee, on March 11 and 12, 2013. Lee Craft, an individual, filed the charge in 26–CA– 085613 on July 19, 2012, and filed an amended charge on Sep- tember 28, 2012. On November 30, 2012, the Acting Regional Director for Region 26 of the National Labor Relations Board (Board) issued a complaint1 and notice of hearing. Generally, the complaint alleges that since January 19, 2012, Philips Elec- tronics, North America Corporation (Respondent) has main- tained a rule that discipline is confidential and prohibiting em- ployees from sharing and/or discussing their discipline with their coworkers. The complaint further alleges that Respondent terminated Lee Craft (Craft) on January 25, 2012, because he showed and discussed with his coworkers an employee coun- seling form that he received from Respondent on January 20, 2012. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the Acting General Counsel2 (General Counsel) and the Respondent, I make the following FINDINGS OF FACT During the 12-month period ending October 31, 2012, Re- spondent sold and shipped goods valued in excess of $50,000 directly to points located outside the State of Tennessee. Dur- ing the same 12-month period, Respondent purchased and re- ceived goods in excess of $50,000 directly from points outside the State of Tennessee. Respondent admits and I find, that at all material times, Respondent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act (the Act). Alleged Unfair Labor Practices A. Background Respondent’s Southeast Regional Distribution Center in Memphis, Tennessee, employs approximately 52 employees and serves as a distribution center for Philips Lighting products. In addition to its regular employees, Respondent also utilizes approximately 48 temporary employees through Adecco, a temporary service. Employees are assigned to one of four de- partments; Ballast, Professional, Consumer, and Receiving. Respondent’s Memphis operations are directed by Regional Distribution Center Manager Sherry McMurrian. During the relevant time period, Gerak Guyot served as Respondent’s op- erations manager and Rolita Turner, Joe Odum, and William Gibson were supervisors at Respondent’s facility. All of Respondent’s human resources responsibilities for the Memphis facility are handled by Respondent’s corporate office in Somerset, New Jersey. Specifically, Palak Dwivedi in Re- spondent’s corporate office dealt with the Memphis human resources issues during the relevant time period. B. Relevant Facts 1. Craft’s work history Craft was hired at Respondent’s facility as a material handler in February 2003. With the exception of the last 5 days of his employment, Craft was assigned to the Ballast Department. In April 2010, Craft was promoted to a lead position where he was supervised by Gene Blinstrup. Rolita Turner also began her work with Respondent as a warehouse worker and she was 1 All dates are in 2012 unless otherwise indicated. 2 For purposes of brevity, the Acting General Counsel is herein ref- erenced as the General Counsel. 194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD promoted to the lead position in 2005. Turner testified that although she and Craft never worked in the same department when they were leads, their working relationship as leads was not problematic. In October 2010, Blinstrup retired, leaving the supervisor’s position open. Both Craft and Turner applied for the position. Turner was selected for the supervisory position and she super- vised Craft until he transferred out of the Ballast department on January 20, 2012. Turner testified that after assuming the su- pervisory position, she concluded that Blinstrup had performed a good deal of the leads’ work in addition to his own duties. Respondent conducts a performance appraisal for every em- ployee annually. The employee’s work is reviewed with re- spect to quality, dependability, teamwork, and safety. After supervising Craft for 4 months, Turner, with the help of McMurrian, completed a performance appraisal for Craft. McMurrian testified that Craft’s appraisal score indicated that improvement was needed. On February 9, 2011, Craft received an employee counseling discipline for unsatisfactory performance based on a determina- tion that he had failed to ensure that all orders in the Ballast department were picked, processed, and shipped for 2 weeks and he had failed to inform the supervisor of the issues. On April 14, 2011, Craft received an additional employee counsel- ing for unsatisfactory work based on a determination that he failed to ensure good housekeeping practices. The following month, Craft was given an employee counseling dated May 13, 2011, for unsatisfactory performance. The discipline was spe- cifically issued because of a failure to ship certain packages and orders on May 11 and 12, and for working overtime without first obtaining authorization. On June 21, 2011, Respondent issued Craft an employee counseling for failing to ensure that all deliveries were shipped. McMurrian testified that during the time that Craft worked as a lead, she worked with him to personally coach him on learn- ing his new duties. She recalled that he had struggled with run- ning reports and she personally showed him how to run the necessary reports. She provided him with screen print samples of the transactions for him to use as references when she was not available to help him. 2. Craft’s interaction with employee Kim Coleman prior to his demotion Kim Coleman began working for Respondent in August 2003 and she became a fulltime employee in January 2004. Craft was already an employee at Respondent’s facility when Coleman began her work at the facility. Coleman testified that initially her relationship with Craft had been friendly. After a period of time, however, Craft asked her for a date. She testi- fied that she told him “No” explaining to him that he was be- neath her. She recalled that she told him that he was married and she didn’t “like his kind.” She further testified that she had believed that he just wanted to go out with her in order to belit- tle her as a single parent. Before Craft became a lead, Coleman had little opportunity to deal with Craft as he worked in the Receiving section and she worked in the Returns sections of the department. Coleman testified that when Craft became her lead, she felt that he tried to exert control over her and to intimidate her. She recalled that he told her “I run this floor and you’re going to do what I ask you to do. I am the boss. They’re going to believe what I say.” Coleman described Craft as speaking harshly to her and she asserted that he spoke to her in a way that made her feel that she was worth nothing. Coleman recalled that he told her that she did not deserve to be there and his statement to her was “your expiration date is over.” He told her that she was going to be fired. Coleman also testified in detail about Craft’s comments to her about the clothes that she was wearing, includ- ing his specific references to her underwear. McMurrian recalled that on July 8, 2011, Coleman came to her office to discuss Craft. Coleman told McMurrian that Craft was harassing her on the floor. Coleman reported that Craft pulled her from her regular job to do other work, yelled at her, and threatened that he would “make sure” that she would lose her job. McMurrian spoke with Craft and explained to him that Coleman’s job was in the Receiving section and she advised him to coordinate with Coleman’s supervisor before he pulled her off that job to do other work. McMurrian told Craft that other employees had complaints about him and that he needed to communicate with his team and to work more closely with Supervisor Rolita Turner to understand the demands of the Ballast area. McMurrian also documented a meeting with employee James Powell on July 10. Powell, who was also a lead in Bal- last, reported to McMurrian that during a shift meeting with the Ballast employees, Craft screamed at the employees and threat- ened to ensure that they would be fired. Coleman testified that she had attended this same meeting and she recalled that Craft told the employees that they would be fired. On July 15, 2011, McMurrian and Operations Manager Guyot met with Craft. McMurrian told him that she felt that he was not ready for the lead position and that he needed to return to the position of material handler. Craft was also given a writ- ten warning that referenced the incident occurring on July 10, 2011. The warning language notes that during a meeting with Ballast employees, Craft threatened and berated the team and acted in a way that was unacceptable. The warning also indi- cated that other than Craft’s not following through with team lead duties, employees Kim Coleman and Uma Jalloh perceived Craft’s behavior as harassment. The discipline, that was signed by Regional Distribution Center Manager McMurrian and Op- erations Manager Guyot, confirmed that after 6 months, Craft had not performed the team lead functions and that he would be returned to the position of material handler. 3. Incidents occurring after Craft’s demotion Following the July 2011 demotion, Craft returned to the po- sition of material handler and his pay was reduced $2.50 an hour. McMurrian testified that even though Craft was no long- er in the lead position, the issues remained between Craft and Coleman. Coleman recalled an incident that occurred after Craft re- turned to the job of material handler. Craft and Coleman ar- gued as to whether Coleman had placed a skid in the wrong bin. She argued that she had not and Craft argued that she had done so. After she checked for herself, she found that the skid was in PHILIPS ELECTRONICS NORTH AMERICA 195 the wrong bin. Coleman apologized to Craft and admitted that she had been wrong. She testified that he told her to get on her knees to make the apology. She refused. On December 22, 2012, Turner telephoned McMurrian while she was away from the facility on vacation. Turner reported that Coleman had come to her alleging that Craft had left some type of recording device next to her workstation and that she was very uncomfortable and believed that Craft was trying to record her conversations. McMurrian directed Turner to have Guyot go to Coleman’s workstation and retrieve the device. In his investigation, Guyot discovered that the device was a Play Station Portable hand-held videogame system. McMurrian recorded in her notes that because cell phones and other such devices were not allowed on the work floor, Guyot told Craft not to have the device on the floor as the company would not be responsible if it were stolen. McMurrian also recorded in her note concerning this incident that she had previously spoken with Craft in June 2011 about using his cell phone or other devices to record people without their knowledge. Although Craft asserted to McMurrian in the June 2011 meeting that he was only recording notes for himself as a team leader, McMur- rian had directed him to use a note pad. On December 26, 2012, Turner brought Coleman to McMur- rian’s office and asked to speak with McMurrian. Coleman told McMurrian that Craft was trying to make people think that he was recording their conversations and phone calls and she told McMurrian that she had experienced enough of Craft’s harassment. Coleman reported that Craft appeared to be taking pictures of the product that another employee was sorting. Coleman reported that she was frightened of Craft and that she felt that he was singling her out for criticism. She asserted that Craft had threatened that he was going to get her fired. Coleman also told McMurrian about the incident when Craft told her to get on her knees to apologize to him. Coleman fur- ther contended to McMurrian that Craft continued to stare at her and to make her feel uncomfortable. McMurrian recalled that Coleman was crying and appeared to be clearly upset in reporting these things to her. McMurrian testified that Cole- man reported that she was frightened of Craft and that she feared for her life and her job. Following this meeting, McMurrian spoke with other em- ployees about Coleman’s allegations. Employee Antonio Ed- wards reported that Craft had made the statement to him that he (Craft) was going to start making some changes there and he was going to fix it so that “no one had to kiss butt to move up the ladder.” McMurrian documented that employee Len Lee opined that Craft had “bad blood” for Coleman. Employee Latoya Hyde opined that Craft had problems with “single women” working on the work floor and she asserted that he treats them differently than other women. McMurrian docu- mented that employee Thelma Halbert reported that she had witnessed Craft’s harassment of Coleman. Halbert reported to McMurrian that even though Craft was no longer Coleman’s lead, he continued to monitor her work and to tell her what to do. After speaking with various employees about Coleman’s al- legations, McMurrian met with Craft. She told him that Cole- man had reported that he had harassed her. Craft testified that although McMurrian had given him specific details, he had not asked for any details. Craft recalled that McMurrian asked him why Coleman would have thought that he was harassing her. He testified that he told McMurrian that he couldn’t’ speak for Coleman; he could only speak for himself. Craft did not testify that he denied the alleged behavior when speaking with McMurrian. In direct examination, however, Craft denied that he had stared at Coleman, watched her work, or threatened her. He denied that he told her to kneel when she apologized to him. He recalled that McMurrian had also told him that employees had alleged that he had threatened management and that he had made comments about replacing management. Craft denied to McMurrian that he had done so. 4. Craft’s participation in preshift meetings At the beginning of each workday and at the beginning of the first shift, Respondent conducts a preshift meeting for all the employees on that shift, including the temporary employees. The meetings are usually conducted by the lead employees; however, supervisors occasionally attend the meetings. The majority of the meetings are devoted to pertinent work-related topics for that day. After Turner became a supervisor in 2010, she implemented an additional segment for the morning meet- ing that was known as “a minute to shine.” After the leads finished their portion of the meeting concerning work-related topics, individual employees were given an opportunity to speak during the meetings. Turner testified that she initiated the segment to give employees a chance to discuss positive things that had happened in their lives. After its implementa- tion, Craft participated in the “minute to shine” on the average of three times each week. Craft testified that he used this time to try to motivate employees and he often gave speeches and reworked the lyrics of songs to make them applicable to work. Team Lead Lester Peete testified that for the most part, Craft’s comments were about employees working together and team work. He also confirmed that some of the employees reacted negatively to Craft’s remarks and didn’t understand what he was trying to say to them. Coleman testified that Craft’s comments were “always” neg- ative toward Respondent during these meetings; stating that managers and supervisors were not doing what they were sup- posed to do. Coleman recalled that he told employees that he was going to “make things change.” She also recalled that his comments in the meetings were directed toward her, stating such things as “Certain people, you know who I’m talking about. You’re not doing the right thing. You are going to be terminated. Your time is up.” 5. Respondent’s continuing investigation of Craft On January 3, 2012, Guyot submitted an incident report to McMurrian recommending Craft’s termination. In the memo- randum, Guyot described various performance problems in Craft’s work as an hourly employee and as a lead that had been observed. He concluded by stating: I fully support Rolita Turner’s decision to demote Craft from Lead back to material handler. Now, in light of all the other incidents Lee has caused, I support the decision to move for- ward and terminate Lee Craft from Phillips to eliminate the 196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hostile working environment Lee Craft has caused. On January 4, 2012, Coleman also provided Respondent with a hand written statement outlining her concerns about Craft. In the statement, Coleman referenced recent problems with Craft, as well as, earlier problems in working with him. She alleged in the statement that Craft asked her for a date and she included her response to him. She reported that Craft con- tinually criticized her and threatened that she would be fired. She alleged that he stared at her throughout the day and she added that she thought that he was trying to record her tele- phone conversations. She also mentioned an incident occurring as early as 2010 when Craft attempted to have her removed from the facility by a security guard because he observed her using her cell phone. On January 4, 2012, Craft picked the wrong item when fill- ing an order and an incorrect order was shipped to a customer. On January 16, while deleting a delivery and adding to another shipment, Craft added all new deliveries to one shipment, tak- ing administrative staff several hours to correct and to reprint 318 deliveries. 6. Respondent’s initial decision to terminate Craft On January 16, 2012, McMurrian met with Operations Man- ager Guyot and Supervisors Joe Odum and William Gibson. McMurrian recalled that they reviewed Craft’s personnel file and discussed the fact that they had coached him, as well as having issued disciplinary warnings to him. In a memorandum dated January 16, 2012, McMurrian documented that when she spoke with Craft on December 28, 2011, she told him that his statements that were made during preshift meetings and to other employees were being perceived by employees as working against the company and threatening in nature. In their discus- sions on January 16, 2013, McMurrian and the supervisors discussed the fact that although they had removed Craft from the lead position, they were continuing to have the same kinds of issues with him. At that point, they decided that he should be terminated and a notice of termination was prepared for Craft. In reviewing the file, however, McMurrian and her man- agers discovered that Craft had not previously received a final written warning. Because it was Respondent’s custom to issue a final written warning prior to a notice of termination, Re- spondent did not issue Craft a notice of termination. A final written warning was prepared and given to Craft on January 20, 2012. The final written warning confirms that Craft was given the warning because he had engaged in highly disruptive behavior in the preshift meetings and because he had also engaged in harassing and intimidating behavior towards colleagues and towards management. The warning documents that several employees had reported feeling threatened. McMurrian testi- fied that she included these factors as a reason for the warning based on the reports from employees Lester Peete, Antonio Edwards, and Thelma Halbert who had reported Craft’s behav- ior during the preshift meetings and his behavior toward other employees. She explained that she had also based the warning on Craft’s disrespectful behavior to Turner and the harassing and intimidating behavior toward Coleman. McMurrian testi- fied that she had simply found Coleman’s version of events more credible than Craft’s. The warning further lists his errors in shorting orders on January 14, 2012, and his shipping errors in January 16, 2012. In addition to giving Craft a final written warning, McMur- rian decided to move Craft to the Professional department that was in an entirely different building and where he would be assigned to a male supervisor. When McMurrian met with Craft on January 20, 2013, to give him the final written warn- ing, she informed him of the transfer. Craft was also instructed to stay completely away from Coleman’s work area. McMur- rian also informed Coleman that Craft had been moved from the Ballast department and assigned to a new supervisor. 7. Circumstances leading to Craft’s discharge McMurrian testified that although Craft was instructed to stay away from Coleman’s work area, he did not do so. On January 24, and only 4 days after his final written warning, McMurrian received reports from other employees that Craft had taken the forklift from the Professional department and had gone back into the Ballast work area. Coleman testified that Craft came into her work area and while sitting on his forklift, he began to brag about what happened to him. Coleman re- called that Craft stated that McMurrian had done him a favor by moving him because he would no longer have to lift the heavy ballasts. As he was sitting about 10 feet away from Coleman, Craft added that he was “untouchable.” Coleman testified that he was directing his comments to her. Coleman testified that when Craft was transferred, McMur- rian told her that if Craft did anything to harass her, Coleman should let McMurrian know. Both Coleman and Thelma Hal- bert reported to McMurrian that when Craft came into the de- partment he showed his disciplinary warning to employees and spoke loudly. Coleman reported to McMurrian that Craft had made the statement that he was “untouchable” and Coleman reported to McMurrian that she had heard from other employ- ees that Craft stated that his warning had been given to him because of Coleman’s filing harassment charges against him. Coleman testified that Craft parked his forklift approximately 10 feet away from her when he was speaking loudly about his transfer and discipline. Employee Fred Smith also confirmed to Supervisor Joe Odum and to McMurrian that Craft had shown his disciplinary warning to him. McMurrian testified that Craft’s behavior was grounds for termination for two reasons. She said that Craft’s behavior on January 24 and previously violated Respondent’s policy to maintain a harassment free workplace. Additionally, by going back into the Ballast department, Craft had specifically disre- garded her directive to stay out of that work area. McMurrian testified that aside from his discussion of his disciplinary no- tice, Craft engaged in behavior that was sufficient grounds for termination. C. Whether Respondent Violated the Act 1. The parties’ positions The General Counsel maintains that Respondent unlawfully terminated Craft because he engaged in protected concerted activity by discussing his January 20 final wanting with em- ployees and making statements critical of Respondent’s deci- PHILIPS ELECTRONICS NORTH AMERICA 197 sion to issue him the final warning. Specifically, the General Counsel alleges in the complaint that since January 19, 2012, Respondent has maintained a rule that discipline is confidential and that prohibited employees from sharing and/or discussing their discipline with their coworkers. The complaint alleges that between January 20 and 24, 2012, Craft showed and dis- cussed with his coworkers the final written warning that he received on January 20, 2012, and that Respondent terminated him for doing so. Respondent asserts that its decision to termi- nate Craft was based on his “final act of harass- ment/intimidation/bullying and his disruptive behavior occur- ring on January 24, 2012.” 2. Applicable legal authority As discussed further below, the parties not only disagree about the conduct that triggered Craft’s termination, but they also disagree as to Respondent’s motivation in deciding to ter- minate Craft. In cases where an employer’s motivation is an integral factor in determining the lawfulness of discipline is- sued to employees, the Board utilizes the test that is outlined in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 800 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The Wright Line analysis is based on the legal principle that an employer’s mo- tivation must be established as a precondition to a finding that the employer has violated the Act. American Gardens Man- agement Co., 338 NLRB 644, 645 (2002). In its decision in Wright Line, the Board stated that it would first require the General Counsel to make an initial “showing sufficient to sup- port the inference that protected conduct was a ‘motivation factor’ in the employer’s decision.” Wright Line, above at 1089. Under Wright Line, the General Counsel must establish not only that the employee engaged in protected conduct, but also that the employer was aware of such protected activity and that the employer bore animus toward the employee’s protected activity. Praxair Distribution, Inc., 357 NLRB 1048, 1048 fn. 2 (2011); Camaco Lorain Mfg. Plant, 356 NLRB, 1185 (2011). Specifically, the General Counsel must show that the protected activities were a substantial or motivating factor in the decision to take the adverse employment action. North Hills Office Ser- vices, 346 NLRB 1099, 1100 (2006). In effect, proving the established elements of the Wright Line analysis creates a pre- sumption that the adverse employment action violated the Act. To rebut such a presumption, the respondent must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected activity. Manno Electric, 321 NLRB 278, 281 (1996). If the evidence establishes that the reasons given for the discipline are pre- textual, either in that they are false or not relied on, the em- ployer has failed to show that it would have taken the same action absent the protected conduct, and there is no need to perform the second part of the Wright Line analysis. Golden State Foods Corp., 340 NLRB 382 (2003); Limestone Apparel Corp., 255 NLRB 722 (1981). The Board has held that an employer’s restriction on em- ployee communication is overbroad when the restriction is not limited by time or place. SNE Enterprises, 347 NLRB 472, 492–493 (2006), enfd. 257 Fed. Appx. 642 (4th Cir. 2007). Furthermore, an employer’s restriction on employees’ discuss- ing confidential information interferes with employees’ Section 7 rights unless the employer can demonstrate a legitimate and substantial business justification that outweighs the employee’s Section 7 interests. Caesar’s Palace, 336 NLRB 271, 272 fn. 6 (2001). See also Westside Community Mental Health Center, 327 NLRB 661, 666 (1999). The General Counsel maintains that Craft was unlawfully terminated because he shared confi- dential information about his January 20, 2012 warning with other employees. 3. Whether Respondent maintained an unlawful confidentiality rule Paragraph 4 of the complaint alleges that since January 19, 2012, Respondent has maintained a rule that discipline is confi- dential and prohibiting employees from sharing and/or discuss- ing their discipline with their coworkers. It is undisputed that there is no written policy that prohibits employees from dis- cussing their discipline with other employees. McMurrian also testified that Respondent does not have a policy that prohibits employees from discussing disciplinary notices. In a sworn affidavit to the Board prior to the hearing, Craft testified that he was not aware of any policy or rule that prohibits an employee from showing or discussing discipline with other employees. Craft further testified that when he received his final written warning, none of the supervisors or managers told him that the warning was confidential; either with respect to the form itself or to discussion about the discipline. Despite the testimony of both McMurrian and Craft, the General Counsel nevertheless asserts that Respondent unlaw- fully implemented a policy prohibiting the discussion of disci- pline on January 19, 2012. In maintaining this assertion, the General Counsel relies on a file summary that is dated January 24, 2012, and signed by McMurrian, supervisors, and employ- ees on January 25, as well as the wording of Craft’s January 25 discharge notice. In the January 24, 2012 memorandum, McMurrian docu- ments that Coleman and Halbert came to her, reporting that Craft was showing his disciplinary form to employees on the floor and they confirmed the content of the discipline to her. Coleman reported to McMurrian that Craft had told other em- ployees that the discipline was given to him because she (Coleman) had filed harassment charges against him. She also told McMurrian that Craft had bragged that he was “untoucha- ble” and that management had done him a favor by moving him out of the Ballast area. McMurrian included in the memoran- dum the information provided by Halbert and by employee Fred Smith about Craft’s comments concerning his discipline and his comments about his transfer out of the Ballast depart- ment. In referencing the fact that Coleman and Halbert came to her with complaints about Craft’s statements and actions, McMurrian adds: “These employees are aware that disciplinary forms are confidential information and should not be shared on the warehouse floor, at any time, much especially during work- ing hours.” McMurrian also added, “Kim stated that he was purposely showing the writeup which he knows is confidential information so it would get back to her like she was the blame.” Coleman testified that she told McMurrian that the discipline 198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD forms were confidential and should not be shared with others. When asked why she made this statement, Coleman admitted that no one ever told her that such discipline was confidential; she had just assumed that it was. She explained that because a discipline is personal for an employee, she assumed that em- ployees should keep it to themselves. Coleman further testified that when she told McMurrian that she thought that Craft was revealing confidential information, McMurrian did not respond that it was confidential or tell her that it was wrong for Craft to show her his disciplinary form. McMurrian’s response to Coleman was simply, “Why would he want to do that? Why would he want to show that?” Based on the total record evidence, it appears that Coleman was the individual who appeared to be most concerned that Craft was telling employees about his discipline. Based on her testimony and the information that she reported to McMurrian, Coleman was disturbed by Craft’s statements about his disci- pline and transfer because she believed that he was targeting her as responsible. Thus, while McMurrian may have refer- enced in the memorandum that Craft showed his disciplinary warning to employees on January 24, as well as the fact that Coleman raised the confidentiality of the discipline, there is no credible record evidence that Respondent told employees on January 19, 2012, that they were prohibited from sharing and/or discussing their discipline with coworkers as alleged in com- plaint paragraph 4. McMurrian included in Craft’s termination notice that Craft requested a copy of his writeup and he was informed of the confidentiality of the discussion and the form during this meet- ing. McMurrian testified that Craft raised the issue of confiden- tiality in his disciplinary meeting and she had assured him that their conversation was confidential. The record supports her explanation as to how confidentiality was raised during the meeting and why she added a reference to confidentiality as she did in Craft’s termination notice. Craft specifically denied that he was told in the meeting that the disciplinary form was confi- dential. He did not testify that McMurrian or any of the man- agers told him that he could not discuss his discipline. Based on both the testimony of McMurrian and Craft, it is reasonable that when Craft requested a copy of his discipline, he was given assurances that Respondent would maintain the confidentiality of his discipline. I do not find sufficient evidence that Re- spondent told Craft or any other employees on January 19, 2012, that they were prohibited from discussing their discipline with other employees. Overall, I don’t find the wording in Craft’s termination notice as sufficient evidence to prove that Respondent established a prohibitive policy 6 days earlier as alleged in the complaint. Accordingly, I do not find merit to complaint paragraph 4 as alleged. 4. Whether Craft was terminated because of his protected activity Independent of whether Respondent implemented a policy on January 19, 2012, that restricted employees from discussing their discipline, there remains the issue of whether Respondent terminated Craft because he engaged in protected activity by discussing his discipline with other employees. Specifically, the General Counsel alleges that between January 20 and 24, 2012, Craft showed and discussed with his coworkers the coun- seling form that he received on January 20, 2012. Respondent, however, alleges that Craft was terminated because of his con- duct on January 24, 2012. D. The Application of the Wright Line Analysis 1. Whether Craft engaged in protected activity As discussed above, the first component of the Wright Line analysis is establishing that an employee has engaged in pro- tected activity. Although Respondent conducted an investiga- tion prior to issuing Craft the January 20, 2012 warning, there is no evidence that Respondent engaged in any further investi- gation of Craft’s conduct prior to January 24, 2012, when McMurrian received complaints from Coleman and Halbert. The overall record indicates that once Respondent issued Craft the final warning and then transferred him to an area for super- vision by a male supervisor, Respondent took no further notice of Craft until January 24, 2012. Respondent asserts that Craft’s termination was triggered by his conduct on January 24, 2012, when he came back into the Ballast area and caused a disturb- ance related to his discipline and transfer. Interestingly, Craft denies that he went into the Ballast area after January 20, 2012. He contends that while he spoke with other employees about the discipline that he had received, he did so between January 20 and 24, 2012, and on nonworking time in areas other than the Ballast area. Overall, I do not find Craft’s testimony credi- ble in this regard. The total record evidence, including the credible testimony of Coleman and Halbert, support a finding that Craft came back into the Ballast area on January 24, 2012, as documented in McMurrian’s January 24, 2012 memoran- dum. Although the parties disagree with respect to when Craft talked with other employees about his discipline and his trans- fer, there is no dispute that he did so. As the Board has previ- ously determined, “it is important that employees be permitted to communicate the circumstances of their discipline to their coworkers so that their colleagues are aware of the nature of discipline being imposed, how they might avoid such disci- pline, and matters which could be raised in their own defense.” Verizon Wireless, 349 NLRB 640, 658 (2007). Thus, Craft’s communication to other employees about his discipline and transfer is clearly protected activity. 2. Respondent’s knowledge of Craft’s protected activity Respondent argues that the second prong of the Wright Line analysis cannot be met because Respondent had no knowledge that Craft was talking with employees about his discipline prior to January 24, 2012. Respondent argues that inasmuch as Craft denies engaging in protected activity on January 24, 2012, the requisite knowledge cannot be established. I note, however, that actions taken by an employer against an employee based on the employer’s belief that the employee engaged in or in- tended to engage in protected activity are unlawful even though the employee did not in fact engage in or intend to engage in such activity. Signature Flight Support, 333 NLRB 1250, 1250 (2001); U.S. Service Industries, Inc., 314 NLRB 30, 31 (1994), enfd. mem. 80 F.3d 558 (D.C. Cir. 1996). Thus, even if I were PHILIPS ELECTRONICS NORTH AMERICA 199 to credit Craft’s testimony, finding that he did not come back into the Ballast area on January 24, 2012, Respondent believed that he did so, and disciplined him for conduct related to pro- tected activity. Accordingly, I find that Respondent had knowledge that Craft engaged in protected activity. 3. Whether Craft’s protected activity was a motivating factor in his discharge Counsel for the General Counsel relies on the January 25, 2012 discharge notice as a basis for showing that Craft’s dis- cussions about his discipline were a factor in Respondent’s motivation to discharge Craft. The notice specifically describes the violation as: Lee Craft is being terminated effective immediately due to disrupting the operation and sharing confidential documenta- tion and information during working hours and continues to use intimidating language towards management. Lee re- ceived a final written disciplinary notice warning against these exact behaviors on January 20, 2012. Lee requested a copy of the writeup and was informed of the confidentiality of the dis- cussion during the meeting. Counsel for the General Counsel also asserts that in McMur- rian’s memorandum of January 24, 2012, she focuses on Craft’s discussing his warning notice with other employees while writ- ing that employees are aware that discipline forms “are confi- dential and should not be shared on the warehouse floor at any time.” As I have discussed above, I have found that the discus- sions and concerns about the confidentiality of Craft’s disci- pline were initiated by employees Coleman and Halbert rather than by the Respondent. McMurrian, however, identified the breach of confidentiality in both her January 24, 2012 memo- randum as well as in Craft’s termination notice. Respondent does not deny that Craft was terminated because of his going back into the Ballast department and the statements that he made there to employees. These statements included his dis- cussion about his discipline and his transfer. Thus, as his dis- cussions about his transfer and discipline were intertwined with all of his actions on January 24, 2012, such actions were a mo- tivating factor in Respondent’s decision to discharge Craft. Accordingly, the General Counsel has met the initial burden of showing that protected activity was a motivating factor in Re- spondent’s decision to terminate Craft. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). 4. Whether Respondent would have terminated Craft in the absence of protected activity Once the General Counsel meets the initial burden of show- ing that an employee’s protected activity was a motivating fac- tor in the adverse employment, the employer has the burden of demonstrating that it would have taken the same action in the absence of the protected conduct. Wright Line, 251 NLRB at 1089. The total record evidence supports a finding that Re- spondent has met this burden. As argued by counsel for the Respondent, the record evi- dence demonstrates that Respondent had already decided to terminate Craft before he engaged in any protected activity. In a memorandum dated January 16, 2012, McMurrian describes a December 28, 2011 meeting attended by Supervisors Odum and Gordon, as well as Craft and McMurrian, Craft was informed that Respondent was investigating an additional report of his engaging in intimidating and harassing behavior. McMurrian documented that she informed Craft of the complaints received from other employees. McMurrian further documented in the report a number of comments and complaints submitted by employees, as well as by Supervisor Rolita Turner. Specifical- ly, McMurrian noted that Turner had reported that Craft had persistently attempted to undermine and belittle her decisions and that he continued to demonstrate a lack of respect for Turner. McMurrian noted that Craft’s disruptive behavior was inappropriate; interfering with operations and it was viewed as unstable as documented by specific named employees. McMurrian concludes: After many coaching sessions, and disciplinary action, which included a demotion from the Team Lead position, Lee Craft has continued to display intimidating, offensive, and demoral- izing behavior. It is in the best interest of the company and the employees of Phillips [sic]to terminate Lee Craft’s em- ployment, effective immediately. The intimidating behavior is a violation of company policy. Phillip’s [sic] has the re- sponsibility to create a safe environment where offensive and intimidating behavior is not tolerated. McMurrian concluded the memorandum by noting that the decision to terminate Craft had been made jointly by the distri- bution manager, the operations manager, and by three distribu- tion center supervisors. The termination notice that was prepared on January 16, 2012, reflected that Craft was being terminated because of in- appropriate behavior and a violation of company policies and procedures. The notice documented that Craft had been re- moved from the team lead position on July 25, 2011, because of his use of intimidating tactics that were perceived by two fe- male employees as harassment and because he was not per- forming the tasks required in the team lead position. The Janu- ary 16, 2012 termination notice further noted that in July 2011, Craft had been informed that if he failed to perform the duties of material handler or if he had further issues with his fellow coworkers, he would be subject to further discipline up to and including termination. As noted above in this decision, Respondent did not termi- nate Craft on January 16, 2012, as originally intended. Because it was discovered that he had not previously received a final written warning, the termination was converted to a final writ- ten warning and he was spared termination. The warning that issued on January 20, 2012 documents that Craft had engaged in inappropriate behavior, unsatisfactory performance, and a violation of company policy/procedures. The final written warning included a reference to two specific performance is- sues. The warning also referenced that Craft had engaged in highly disruptive behavior in the preshift meetings and that Craft had engaged in harassing and intimidating behavior to- ward colleagues and towards management. There was no alle- gation or finding that Craft discussed confidential information or engaged in any other protected activity. Because of Craft’s reported behavior toward female employ- 200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ees as well as his female supervisor, Craft was moved out of the Ballast department to a department under a male supervisor. McMurrian credibly testified that he was instructed to stay out of the Ballast department. In transferring, Craft into the new department, Respondent gave Craft an opportunity for a fresh start to work with different employees and a different supervi- sor. On January 24, 2012, McMurrian learned that Craft had not only returned to the Ballast department in violation of her in- structions to him, but that he had also engaged in behavior that employees reported as disruptive. In alleging that Respondent terminated Craft because of his sharing information about his discipline with other employees, the General Counsel relies on the wording of Craft’s final termination notice. The General Counsel specifically relies on the fact that Respondent refer- enced Craft’s “sharing confidential documentation and infor- mation during working hours” in the description of Craft’s conduct. As I have indicated above, such wording is arguably sufficient to establish that the General Counsel has met the initial burden of a prima facie case under Wright Line. The remainder of the termination notice, however, demonstrates that Respondent would have terminated Craft in the absence of any protected activity. The January 25, 2012 termination notice documents that he was also terminated because of his disrupting the operation and for using intimidating language toward management. Even more significant, however, is the additional language that was included in the termination notice: Lee received a final written disciplinary notice warning against these exact behaviors on January 20, 2012. There is no dispute that the final warning given to Craft on January 20, 2012, did not involve any allegation of disclosing confidential information. The language of the warning reflects that it was issued to Craft for (1) highly disruptive behavior; (2) harassing and intimidating behavior towards colleagues and management, and (3) for performance issues. Thus, it is appar- ent that even in the absence of any protected activity, Respond- ent terminated Craft because Respondent determined that he had engaged in the same conduct that triggered his January 20, 2012 notice. More significantly, Craft’s conduct on January 24, 2012, was consistent with the conduct for which Respond- ent based its earlier decision to terminate Craft on January 16, 2012, and prior to any alleged protected activity. As discussed above, Craft denies that he came back into the Ballast department on January 24, 2012, and spoke with em- ployees. Because of this denial, the General Counsel asserts that Craft engaged in protected activity; it was simply not on January 24, 2012. Because of Craft’s denial, the General Counsel is forced to argue that Craft discussed his discipline with employees during the period between January 19 and 24, 2012. I note, however, that neither McMurrian’s memorandum of January 24, 2012, nor Craft’s termination notice reference any dates of alleged misconduct other than January 24, 2012. In reaching the decision that Respondent would have terminat- ed Craft in the absence of any protected activity, I rely in large part on the documentary evidence and the credible testimony of McMurrian. Based on the information provided by other em- ployees, McMurrian determined that Craft had disregarded her instructions to stay out of the Ballast department and that he was engaging in the same conduct for which he had previously been warned. There is no question that Craft’s behavior on January 24, 2012, included his comments to other employees about his discipline and his transfer. As discussed above, Section 7 of the Act clearly protects employees when they tell other em- ployees about their discipline. Based on the testimony of Coleman, however, it is also apparent that Craft’s statements were arguably motivated to accomplish more than a simple sharing of information with other employees. Based on her testimony and on the information that she gave McMurrian, it is evident that Coleman perceived Craft’s return to the Ballast department and his statements to her and to other employees as additional harassment. Ostensibly, Craft’s behavior reflected more than simply sharing what Respondent had done to him; it included communicating to other employees that Coleman was responsible for his discipline and transfer. It is reasonable that Respondent determined that in his doing so, Craft had again harassed Coleman and engaged in the same conduct for which Respondent had intended to fire him only 8 days earlier. It has long been held that an employer violates the Act if it is shown that the discharged employee at the time engaged in protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct. An employer’s honest belief, how- ever, provides a defense to a charge of discrimination absent a showing that the employee did not, in fact, actually engage in the alleged misconduct. NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 22 (1964); Westinghouse Electric Corp., 296 NLRB 1166, 1173 (1989). In the instant case, the evidence is not suf- ficient to establish that Craft did not engage in the conduct that was reported to McMurrian by his fellow employees. Thus, Respondent has demonstrated that it would have terminated Craft in the absence of any protected activity. Accordingly, I do not find that Respondent terminated Craft in violation of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent, Philips Electronics North American Cor- poration, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent has not violated the Act as alleged in the complaint. [Recommended Order omitted from publication.]