S. Freedman & Sons, Inc.

S. FREEDMAN & SONS, INC. 1203 364 NLRB No. 82 S. Freedman & Sons, Inc. and Drivers, Chauffeurs and Helpers Local Union No. 639, a/w Interna- tional Brotherhood of Teamsters. Cases 05–CA– 121221, 05–CA–132227, and 05–CA–138025 August 25, 2016 DECISION AND ORDER BY MEMBERS MISCIMARRA, HIROZAWA, AND MCFERRAN On March 31, 2015, Administrative Law Judge Mi- chael A. Rosas issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The General Counsel and the Charging Party each filed an answering 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 adopt the judge’s rulings, findings1 and conclusions in part, to reverse them in part, and to adopt the recom- mended Order as modified and set forth in full below.2 I. INTRODUCTION The Respondent, S. Freedman & Sons, Inc., is a corpo- ration based in Landover, Maryland, where it is engaged in the distribution of paper products and restaurant sup- plies to companies from Delaware to Virginia. The Re- spondent employs approximately 135 employees, includ- ing about 28 drivers. Drivers, Chauffeurs and Helpers Local Union No. 639, a/w International Brotherhood of Teamsters (the Union) has been the exclusive bargaining representative of the Respondent’s drivers and ware- housemen for approximately 50 years. The most senior driver, Richard Saxton, has worked for the Respondent for 26 years and has been chief union steward for nearly 17 years. The complaint alleges that the Respondent violated Section 8(a)(1), (3), and (4) of the Act by suspending and terminating Saxton on four separate occasions because he engaged in protected concerted activity and participat- ed in unfair labor practice proceedings against the Re- 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 shall modify the judge’s recommended Order to conform to our findings and to the Board’s standard remedial language. In accordance with our decision in AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016), we shall modify the judge’s recommended tax compensation and Social Security reporting remedy. We shall substitute a new notice to conform to the Order as modified. spondent. The complaint further alleges that the Re- spondent violated Section 8(a)(1) of the Act by requiring Saxton to sign a settlement agreement that contained a confidentiality clause in exchange for reinstatement. We adopt the judge’s conclusion that the Respondent violated Section 8(a)(4) and (1) by terminating Saxton on July 3, 2014, and subsequently converting the termina- tion into a suspension. As explained below, we do not adopt the judge’s entire rationale. In particular, we find that the termination and suspension were separate viola- tions. We also adopt the judge’s finding that the Re- spondent violated Section 8(a)(1) by terminating Saxton on September 29, 2014, for invoking his right under the collective-bargaining agreement to refuse overtime work, pursuant to NLRB v. City Disposal Systems, 465 U.S. 822 (1984). We reverse the judge’s finding that the Re- spondent violated Section 8(a)(1) by conditioning Sax- ton’s reinstatement on signing a settlement agreement that included a confidentiality clause. II. DISCUSSION A. Confidentiality/Settlement Agreement On November 8, 2013, Saxton received a traffic ticket for following another vehicle too closely and causing an accident in his company truck. Following an investiga- tion, the Respondent determined that the damages ex- ceeded $8900, and it terminated Saxton pursuant to bar- gaining unit rule 1(a), which authorizes termination for damages exceeding $2000. Subsequently, after meeting with the Union’s president and business agent, the Re- spondent agreed to reinstate Saxton and provide him with gift cards as compensation for lost income. When Saxton reported for work after the agreement to reinstate him, the Respondent’s vice president, James Thompson, met him and stated that Saxton would have to sign a “last chance agreement” before returning to work. Saxton refused. The Union contacted the Respondent, which eventually proposed to convert the termination into a suspension for time served if Saxton would agree not to discuss the terms of the settlement agreement me- morializing the arrangement. Union President Tommy Ratliff agreed to consider the settlement agreement, but the Respondent presented it directly to Saxton when he next reported for work. Saxton signed the agreement. The Union was not a party to the agreement, which stat- ed, in relevant part: I have accepted a suspension of four days in lieu of my termination as a result of my accident on November 8, 2013. By accepting this suspension I waive my right to file a grievance against the Company regarding this termination or suspension. . . . I understand and agree that the terms of this agreement will remain confiden- 1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tial and that any disclosure of this Agreement may lead the Company to take disciplinary action against me, up to and including the termination of my employment. As the judge observed, it is beyond dispute that em- ployees have a Section 7 right to discuss their discipline with one another for the purpose of mutual aid and pro- tection. Banner Estrella Medical Center, 362 NLRB 1108, 1109 (2015).3 Under the circumstances here, how- ever, we find that the Respondent did not violate Section 8(a)(1) by conditioning the settlement on Saxton’s lim- ited waiver of that right. The Board favors “private, amicable resolution of la- bor disputes, whenever possible.” Hotel Holiday Inn De Isla Verde, 278 NLRB 1027, 1028 (1986). The Board has found that an employer may condition a settlement on an employee’s waiver of Section 7 rights if the waiver is narrowly tailored to the facts giving rise to the settle- ment and the employee receives some benefit in return for the waiver. See, e.g., Coca-Cola Bottling Co. of Los Angeles, 243 NLRB 501, 502 (1979) (settlement reduc- ing employee discipline in exchange for employee waiv- er of future litigation concerning that discipline held law- ful); Regal Cinemas, 334 NLRB 304, 305–306 (2001) (settlement conditioning employees’ receipt of severance pay on waiver of right to file Board charges over termi- nations held lawful), enfd. 317 F.3d 300 (D.C. Cir. 2003). The Board has found unlawful, however, settlements that prevent a signatory employee from exercising rights that are unrelated to the facts giving rise to the settle- ment. See Clark Distribution Systems, Inc., 336 NLRB 747, 748 (2001) (severance package barring employees from participating in the prosecution of any claims against the employer held unlawful); Metro Networks, 336 NLRB 63, 67 (2001) (an employee severance agreement prohibiting voluntary assistance to other em- ployees with claims arising under the Act held unlawful). We find that the confidentiality agreement here con- tained a narrowly tailored waiver and that Saxton re- ceived a benefit in return for the waiver, namely rein- statement for a terminable offense. The prospective 3 Member Miscimarra agrees that Sec. 7 protects employees when they discuss discipline with one another, provided that such a discus- sion constitutes concerted activity—that is, the discussion is not “mere griping” but rather “look[s] toward group action,” Mushroom Trans- portation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964)—for the purpose of mutual aid or protection. See Banner Estrella, 362 NLRB 1108, 1123 fn. 58 (Member Miscimarra, dissenting in part). However, Member Miscimarra notes his continuing disagreement with the Board’s decision in Banner Estrella, which concerned a different type of situation than is presented here, namely, a request for confidentiality during an ongoing workplace investigation, not a voluntary confidenti- ality agreement in connection with a completed disciplinary decision. waiver was limited to resolving this one incident: the agreement prohibited Saxton from discussing only the terms of this settlement, not any future discipline. Noth- ing in the agreement limited Saxton’s right to discuss discipline, file grievances, or pursue litigation concerning unrelated matters.4 Finally, although it is arguable that the confidentiality provision could conceivably affect Saxton’s right to assist other employees with future claims (in his capacity as a shop steward), the Union itself retained the ability to share the terms with employ- ees, as it was not bound by the confidentiality clause.5 Accordingly, we reverse the judge and dismiss the com- plaint allegation.6 B. The July 3 Discharge and July 23 Suspension On July 1, 2014,7 Saxton informed Supervisor Ernest Henson that he was taking the day off “to get a license.” Henson, in turn, notified Saxton’s direct supervisor, Ellis Brown, who informed Vice President Jeff Thompson. Brown also told Thompson that he had reminded Saxton several months earlier to renew his license prior to its June 27 expiration date. Thompson immediately began investigating whether Saxton had been driving with an expired license. On July 2, Thompson and Human Resources Director Phillips met with Saxton and his union representative, Antwoine Drayton. After handing Saxton a written 4 The dissent’s reliance on Metro Networks, supra, is misplaced. In Metro, the Board found unlawful a severance agreement that prohibited an employee from assisting other employees with regard to “any matter arising under the National Labor Relations Act and/or disclosing any information to the Board with regard to any and all investigations and proceedings.” 336 NLRB at 67. By contrast, the settlement here is tailored to the facts giving rise to the settlement and restricts only Sax- ton’s ability to discuss with others the terms of his reinstatement. 5 Our dissenting colleague suggests that the Union was potentially subject to liability under the agreement or that Saxton could be termi- nated if the Union disclosed information about the settlement. We disagree. The Union was not a party to the agreement and therefore was not bound by it. It is also noteworthy that the Respondent consult- ed the Union about the agreement before presenting it to Saxton, and the Union raised no objections to Saxton’s execution of it. Finally, as the Union represented Saxton in all disciplinary meetings prior to the settlement, it was privy to the facts of his case and could share that information with other employees without restriction, rendering Sax- ton’s participation unnecessary. 6 In finding the agreement unlawful, the judge relied on cases in- volving overbroad work rules, confidentiality instructions, and manda- tory arbitration policies that favor the right to pursue class or collective action. Those cases are inapposite. The issue here does not involve a broadly applicable rule or a confidentiality instruction during an inves- tigation where the sole beneficiary of confidentiality is the employer, nor does it involve a broad prospective waiver like the one at issue in Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015). Rather, the issue is whether an employer can require an employee to keep confidential the terms of a settlement agreement in exchange for reinstatement. 7 All dates hereinafter refer to 2014 unless otherwise stated. S. FREEDMAN & SONS, INC. 1205 warning for failing to give adequate notice before calling out on July 1, Thompson asked Saxton to explain his absence. Saxton explained that he needed to get a license after he realized on June 30 that his license was lost. Thereafter, Thompson repeatedly badgered Saxton to admit that he had driven on an expired license, calling him a “liar” when he refused to do so. The judge found that Thompson’s insistence that Sax- ton was lying “took [Saxton] over an emotional edge.” Saxton slammed the table and stated that if Thompson insisted on the accusations, “then [they] must be true.”8 Drayton then attempted to show Thompson and Phillips that the “D” designation on Saxton’s license stood for “duplicate.” Thompson and Phillips refused to look at the license or concede its validity. Immediately after the meeting, Phillips contacted an outside investigatory service to procure Saxton’s driving record from the Motor Vehicle Association. The records indicated that Saxton renewed his license on June 4 and obtained a duplicate on July 1. Nevertheless, on July 3, Thompson terminated Saxton for driving with an expired license.9 The Union immediately filed a grievance over Sax- ton’s termination. The Union also filed charges alleging that the termination violated Section 8(a)(3) and (4) of the Act.10 The termination occurred 5 days before a scheduled July 8 hearing on unrelated unfair labor prac- tice allegations involving Saxton.11 That hearing was rescheduled from July 8 to October 6. During a grievance meeting on July 8, Saxton present- ed his Motor Vehicle Administration records showing that he renewed his license on June 4 and obtained a du- plicate on July 1. Saxton explained that he had been re- 8 Although the Respondent construed this statement as an admission by Saxton that he had lied about driving on an expired license, the judge did not make such a finding. 9 In the termination letter, the Respondent asserted that Saxton “ad- mitted that, even though your license expired on June 27, and it was thereafter illegal for you to drive, you nevertheless ran your Company route in your Company truck on June 30, 2014 without a valid license.” The letter further asserted that this was the “third major offense in a period of just over eight months,” and that the Respondent was termi- nating Saxton pursuant to work rule 6(h) (allowing discharge for two major offenses in 18-month period). 10 Subsequently, the Union withdrew the 8(a)(3) charge with respect to the July 3 termination. 11 The Union filed a charge with the Board on January 24, alleging that the Respondent violated Sec. 8(a)(3) and (1) by issuing Saxton a verbal warning for failing to clock out immediately at the end of his shift. The Union filed an amended charge on March 28, alleging that the Respondent violated the Act by terminating Saxton on November 18, 2013, requiring Saxton to sign a confidentiality agreement in ex- change for reinstatement, and disciplining Saxton on December 20. The General Counsel issued a complaint on April 25, and a hearing was initially set for July 8 before being rescheduled to October. luctant to explain the circumstances of losing his license because he had lost it during a visit to the Board and did not want to admit that to the Respondent. Phillips and Thompson refused to accept the records or reinstate Sax- ton.12 On July 23, Thompson reinstated Saxton and convert- ed his termination to a suspension for a “major offense, for dishonesty.” The Respondent’s letter stated: “Alt- hough it is now unclear to us whether Richard drove without a license on June 30, it is clear to us that Richard was dishonest during the course of our investigation. . . .” Saxton returned to work on July 23 and grieved the sus- pension. Analysis 1. July 3 discharge Under Section 8(a)(4) of the Act, an employer may not discriminate against an employee for participating in the Board’s processes, including filing charges, testifying, or being subpoenaed to testify at a Board proceeding. Met- ro Networks, Inc., 336 NLRB 63, 66 (2001). To deter- mine whether an adverse employment action was for prohibited reasons, the Board applies the analysis set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under that framework, the General Counsel must prove that an employee’s union or other protected activi- ty was a motivating factor in the employer’s action against the employee. The elements required to support such a showing are union or other protected concerted activity, employer knowledge of that activity, and union animus on the part of the employer. See, e.g., Consoli- dated Bus Transit, 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009). Discriminatory motive may be demonstrated by circumstantial evidence, and a pre- textual explanation of the employer’s action will support an inference of discriminatory motivation. See All Pro Vending, Inc., 350 NLRB 503, 508 (2007). If the General Counsel carries the initial burden, the burden shifts to the employer to prove, as an affirmative defense, that it would have taken the same action even in the absence of the protected activity. Consolidated Bus 12 On July 17, Phillips submitted a response to Saxton’s claim for unemployment benefits with the Maryland Department of Labor. In that statement, despite having seen documentary evidence that Saxton had renewed his license on June 4, Phillips wrote that Saxton “drove without a valid license on Sat. 6/28 and Monday 6/30.” In a July 18 follow-up statement to the Maryland Department of Labor, Phillips stated that Saxton “drove without a valid license” and then contradicto- rily stated that Saxton would be brought back to work because he had proven his license had not expired. The Maryland Department of Labor determined that the Respondent provided insufficient evidence of mis- conduct and awarded Saxton unemployment benefits. 1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Transit, above at 1066. If, however, the evidence estab- lishes that the reasons given for the Respondent’s action are pretextual—that is, either false or not in fact relied upon—the Respondent fails by definition to show that it would have taken the same action for those reasons, and its defense necessarily fails. See Golden State Foods Corp., 340 NLRB 382, 385 (2003), citing Limestone Apparel Corp., 255 NLRB 722 (1981).13 It is undisputed that Saxton was a union steward who, over the years, had filed scores of grievances and unfair labor practice charges against the Respondent, both on behalf of himself and others. The timing of the July 3 discharge, just before a Board hearing scheduled for July 8 on one of those charges, supports a finding of animus, as does the Respondent’s inadequate investigation. The Respondent asserts that it discharged Saxton for driving on an expired license. The overwhelming evi- dence, however, establishes that the Respondent’s reason is false. The judge credited Saxton’s testimony that he maintained a valid license throughout his employment. And, as the judge found, on three separate occasions, the Respondent was presented with documentary evidence corroborating Saxton’s assertion that he renewed his li- cense on June 4 and obtained a duplicate on July 1.14 Nevertheless, the Respondent terminated Saxton on July 3 for driving on an expired license, thereby evidencing its improper motive. See Active Transportation, 296 NLRB 431, 432 (1989) (Respondent’s continued reliance on the false reason for discipline is “indicative of illegal motivation”), enfd. 924 F.2d 1057 (6th Cir. 1991). Indeed, even after the Respondent knew that Saxton did not drive with an expired license, it continued to as- sert publicly that he had done so. Although Respondent had previously confirmed with the Department of Motor Vehicles that Saxton renewed his license prior to its ex- piration, it continued to assert in its July 17 statement to the Maryland Department of Labor that Saxton drove on an expired license. In its July 18 supplemental statement to the Maryland Department of Labor, Respondent stated both that it would retract Saxton’s discharge because Saxton had proven he had not driven on an expired li- 13 Member Miscimarra does not agree with his colleagues’ statement of the legal principles applicable to determining whether Saxton’s July 3 discharge and July 23 suspension were unlawful. He agrees, howev- er, based on the facts set forth in this decision, that the Respondent discharged and suspended Saxton because of his participation in the Board’s processes in violation of Sec. 8(a)(4) and (1) of the Act. 14 The Respondent excepts to the judge’s credibility finding that Sax- ton consistently maintained that he did not drive on an expired license, asserting that he lied during the July 2 meeting. Although there were some inconsistencies in Saxton’s testimony, ultimately none of the inconsistencies undercut the judge’s finding, corroborated by documen- tary evidence, that Saxton repeatedly asserted that he did not drive on an expired license. cense, and that Saxton “knowingly drove his company truck without a valid driver’s license.” These statements are flatly contradictory and further undermine the asser- tion that Saxton was terminated for driving on an expired license. Having established that the Respondent’s reason for terminating Saxton was false, we find that the Respond- ent failed to show that it would have taken the same ac- tion absent the protected conduct. Golden State Foods Corp, 340 NLRB at 385. Thus, we adopt the judge’s finding that the Respondent’s July 3 termination of Sax- ton violated Section 8(a)(4) and (1) of the Act. 2. July 23 suspension Turning to the July 23 suspension issued to Saxton for lying during the investigation, we find that this disci- pline, too, violated the Act.15 Once again, it is uncon- tested that the Union filed charges with the Board on Saxton’s behalf and that the Respondent had knowledge of those charges. The Respondent’s unlawful discharge of Saxton demonstrates animus, as does the timing of the July 23 discipline, only 2 weeks after the first scheduled Board hearing. The Respondent asserts that it suspended Saxton be- cause he lied during the investigation.16 We find that the Respondent’s stated reason is false. The credited evi- dence supports the judge’s finding that Saxton did not lie about driving on an expired license. We see no reason to overturn the judge’s credibility finding. See FedEx Freight East, Inc., 344 NLRB 205, 205–206 (2005) (Board rejected employer’s assertion that employee was discharged for lying where credited evidence showed employee did not lie), enfd. 431 F.3d 1019 (7th Cir. 2005). Thus, we find that the Respondent has failed to 15 The judge analyzed the July 23 discipline as part of the July 3 ter- mination and as evidence of “shifting reasons” for the termination. We separately analyze the July 23 event, as it was independently alleged and had a separate disciplinary consequence (i.e., conversion of his prior discharge to a suspension). 16 Although the Respondent asserts that Saxton was suspended for “dishonesty,” the dishonesty alleged was never consistently described. Thus, at various times and in its brief to the Board, the Respondent accused Saxton of (1) lying about the fact that he drove with an expired license; (2) lying by admitting to driving with an expired license (when he had not); and (3) lying about the circumstances surrounding the loss of his license. The Respondent’s reliance at various times on three different varieties of “dishonesty” further evidences its unlawful mo- tive. See Approved Electric Corp., 356 NLRB 238, 239 (2010) (citing City Stationery, Inc., 340 NLRB 523, 524 (2003)) (nondiscriminatory reasons for discharge offered at the hearing were found to be pretextual where different from those set forth in the discharge letters); GATX Logistics, Inc., 323 NLRB 328, 335 (1997) (“Where . . . an employer provides inconsistent or shifting reasons for its actions, a reasonable inference can be drawn that the reasons proffered are mere pretexts designed to mask an unlawful motive.”), enfd. 160 F.3d 353 (7th Cir. 1998). S. FREEDMAN & SONS, INC. 1207 show that it would have taken the same action absent the protected conduct. Golden State Foods Corp, 340 NLRB at 385. Accordingly, we find that the Respondent’s suspension of Saxton for “dishonesty” violated Section 8(a)(4) and (1) of the Act. C. September 29 and October 2 Events On September 29, Saxton and three coworkers re- turned to the facility after completing their delivery routes. When Saxton attempted to clock out for the day, Supervisor Brown (at Vice President Thompson’s direc- tion) asked Saxton to take a truck to Ryder for repair. Saxton refused on the grounds that he was already on overtime and, under the collective-bargaining agreement, he was entitled to refuse the job if a junior driver was available to perform the task.17 Thompson then got in- volved in the argument and the two men raised their voices as Thompson insisted that Saxton take the truck because, he asserted, no other drivers were available. Saxton again refused, lacing his refusal with profanity. Thereafter, Thompson told Saxton to punch out and not return the next day. As Saxton was walking out into the parking lot, he spotted a more junior driver and yelled into the warehouse that “Wade was available to take the fucking truck to Ryder.” Moments later, when Union Representative Drayton asked him what was wrong, Sax- ton responded, “this motherfucker fired me again.” After the Union intervened, Saxton was told to return to work the next day. On September 30, when Saxton returned from his route (plus 2 hours of overtime), Brown asked Saxton to talk to Thompson. Saxton re- sponded that he was advised against talking to Thompson without his union representative and that his shift was over. He clocked out and left. After leaving the ware- house, he saw Drayton and told him that Thompson was looking for him. Drayton attempted to find Thompson but could not locate him. On October 2, when Saxton arrived at work, Thomp- son handed him a termination letter referencing his re- fusal to take the truck to Ryder and his insubordination for refusing to meet with Thompson. The letter conclud- ed that this was Saxton’s “third major offense in a period of just over ten months” and that he was terminated. 17 Art. 3—Seniority, Sec. D, of the collective-bargaining agreement provides, in pertinent part: “The Employer shall offer overtime to the most senior employee available at work, in accordance with classifica- tion seniority. The most senior employee available at work will be given the right to refuse to cover an assignment with the understanding that if the employer exhausts its seniority list and there still remains jobs to be covered, junior employees will be required to cover these assignments in order of reverse shift and classification seniority. Over- time is defined as work to be performed outside the normal scheduled work hours.” The judge found that the Respondent violated Section 8(a)(1) by terminating Saxton on September 29 for his protected concerted activity. We agree. See United States Postal Service, 332 NLRB 340, 343–344 (2000) (employees who invoked their collective-bargaining rights to refuse overtime were engaged in protected con- certed conduct), enfd. 25 Fed. Appx. 41 (2d Cir. 2001).18 As an initial matter, the Respondent challenges the judge’s finding that Saxton’s invocation of his right to refuse overtime was reasonable, attempting to character- ize Saxton’s refusal as an unprotected work stoppage. Here, however, there were at least three junior drivers available to perform the work, and but for the Respond- ent’s refusal to assign the overtime to one of them, the work would have continued uninterrupted. On these facts, Saxton’s refusal to accept the overtime assignment did not remotely fall within the contract’s prohibition of an unprotected work stoppage.19 As to the Respondent’s assertion that Saxton engaged in insubordination by refusing to meet with his supervi- sors between September 29 and October 2, we adopt the judge’s finding that Saxton was fired on September 29. The undisputed testimony (from both Saxton and other employee witnesses) was that Thompson told Saxton to “punch out and not return the next day.” Although Sax- ton reported to work on September 30, the judge found that this was only a “temporary reprieve,” because Thompson did not retract his statement and was prepar- ing the termination documents in the interim. A reason- able employee, when instructed to leave and not return, would construe that instruction to be a termination. See FiveCAP, Inc., 331 NLRB 1165, 1201 (2000) (statement to employee that if he left, he should not come back, coupled with subsequent instructions to leave are suffi- cient to lead a prudent person to believe that he had been terminated), enfd. 294 F.3d 768 (6th Cir. 2002); Romar Refuse Removal, 314 NLRB 658, 670 (1994) (statement to employee to “get out of here, . . . we don’t need you 18 The judge properly applied NLRB v. City Disposal Systems, 465 U.S. 822 (1984), in which the Supreme Court affirmed the Board’s finding that an employer violates Sec. 8(a)(1) when it disciplines an employee for asserting a reasonably perceived right grounded in a collective-bargaining agreement. The judge also found that the Re- spondent’s conduct violated Sec. 8(a)(3) and (4). We find it unneces- sary to pass on those additional findings, as they would not materially affect the remedy. 19 We also agree with the judge that Saxton’s use of profanity on the warehouse floor did not cause him to lose the protection of the Act. Saxton’s comments were uttered in a loud warehouse where vulgar language was not uncommon, at the end of the day with few employees present, and in response to being deprived of his contract rights. See Corrections Corp. of America, 347 NLRB 632, 636 (2006) (finding no loss of protection based on employee’s profanity where similar lan- guage was common among employees and supervisors alike). 1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD anymore,” coupled with refusal to assign the employee work that day, was “more than sufficient to lead a pru- dent person to believe” he had been terminated). This is especially true in light of the fact that the Respondent had twice previously attempted to terminate Saxton. Thus, we find that the Respondent violated Section 8(a)(1) by terminating Saxton on September 29.20 CONCLUSIONS OF LAW 1. The Respondent, S. Freedman & Sons, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Drivers, Chauffeurs and Helpers Local Union No. 639, a/w International Brotherhood of Team- sters, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. The Respondent violated Section 8(a)(4) and (1) of the Act by terminating Saxton on July 3, 2014, and by suspending Saxton on July 23, 2014, for filing or partici- pating in charges and proceedings with the National La- bor Relations Board. 4. The Respondent violated Section 8(a)(1) of the Act by terminating Saxton on September 29, 2014, for engag- ing in protected concerted activities. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent unlawfully discharged Rich- ard Saxton, we shall order the Respondent to offer him full reinstatement to his former job or, if that job no longer exists, to a substantially similar position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and to make him whole for any loss of earnings and other benefits suffered as a result of his discharge. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In addition, we shall order the Respondent to compensate 20 We need not rely on the judge’s findings that Thompson had known for a week that the truck needed repair, but instructed Brown to insist that Saxton deliver the truck that day in order to provoke a con- frontation with Saxton. Moreover, although the judge found that there were seven available drivers, we find that the record shows that three drivers returned to the warehouse at the same time as Saxton (and thus were available to work). Finally, having found that Saxton was termi- nated on September 29, we find it unnecessary to pass on the judge’s finding that the Respondent’s conduct on October 2 also constituted separate 8(a)(3) and (4) violations, as such findings would not material- ly affect the remedy. Richard Saxton for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and to file with the Regional Director for Region 5, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar years. See AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016). Finally, we shall order the Respondent to post a notice in accordance with our decision in Durham School Services, 360 NLRB 694 (2014). ORDER The National Labor Relations Board orders that the Respondent, S. Freedman & Sons, Inc., Landover, Mary- land, its officers, agents, successors and assigns, shall 1. Cease and desist from (a) Discharging, suspending or otherwise discriminat- ing against employees for filing charges or participating in proceedings before the National Labor Relations Board. (b) Discharging or otherwise discriminating against any employee for engaging in protected concerted activi- ty. (c) 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 Richard Saxton 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 Richard Saxton whole for any loss of earn- ings and other benefits suffered as a result of the discrim- ination against him, in the manner set forth in the remedy section of the judge’s decision as amended in this deci- sion. (c) Compensate Richard Saxton for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 5, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allo- cating the backpay award to the appropriate calendar year(s). (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful suspension and unlawful discharges of Richard Saxton, and within 3 days thereafter, notify Richard Saxton in writing that this has been done and that the suspension and discharges will not be used against him in any way. (e) Preserve and, within 14 days of a request or such additional time as the Regional Director may allow for S. FREEDMAN & SONS, INC. 1209 good cause shown, provide at a reasonable place desig- nated by the Board or its agents all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after Service by the Region, post at its facility in Landover, Maryland, copies of the attached notice marked “Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 5, 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, the 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 employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the 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 cur- rent employees and former employees employed by the Respondent at any time since July 3, 2014. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. MEMBER MCFERRAN, dissenting in part. After employee Richard Saxton was fired for a No- vember 2013 traffic accident, the Respondent agreed to reinstate him—if Saxton agreed not to disclose the terms of the agreement, on penalty of termination. The agree- ment was presented directly to Saxton—the Union was not a party—who signed it. Saxton, as the Board’s opin- ion today points out, “was a union steward who, over the years, had filed scores of grievances and unfair labor practice charges, both on behalf of himself and others.” My colleagues find the agreement lawful, describing it as a “narrowly tailored waiver” for which Saxton received a benefit: reinstatement for a terminable offense. But to my mind, the agreement plainly interfered with the Sec- tion 7 rights of Saxton and his coworkers to discuss workplace discipline and to act together to address disci- plinary issues. No other purpose for the nondisclosure requirement is articulated or apparent here. In turn, the agreement was not narrowly tailored in the sense that Board precedent demands, nor is it saved by the benefit that Saxton himself received.1 Certainly, an employer may condition the settlement of a grievance on the agreement not to litigate the particular matter further, even though the right to do so is protected by Section 7. See Coca-Cola Bottling Co. of Los Angeles, 243 NLRB 501, 502 (1979). It is just as clear, however, that a set- tlement agreement is unlawful if it reaches too far, by preventing an employee from assisting coworkers with claims against the employer and from communicating with others, including the Board, about his employment. See Metro Networks, 336 NLRB 63, 67 (2001). Unlike my colleagues, I would find that the settlement agree- ment here does reach too far. In Metro Networks, the Board held that the nondisclo- sure provision of a severance agreement unlawfully chilled the Section 7 rights of all employees and could have prevented the immediately affected employee from providing information to the Board. Id. at 67.2 Like- wise, here, as a quid pro quo for a lesser punishment, the nondisclosure requirement prevented Saxton from dis- cussing his discipline with his coworkers, the Union, or the Board. That has an impermissible chilling effect on the Section 7 rights of all employees. As the Board has explained, “[i]t 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 discipline, and matters which could be raised in their own defense.” Verizon Wireless, 349 NLRB 640, 658 (2007). The nondisclosure provision of course barred Saxton from exercising his Section 7 right to share the terms of the settlement with his coworkers. Just as im- portant, however, the provision consequently impaired his coworkers’ Section 7 right to call upon Saxton for support in seeking a lesser punishment should they find themselves in similar circumstances. In that way, the nondisclosure provision tends to undermine the “solidari- ty” principle that underlies employees’ right to act con- 1 For the reasons stated in the Board’s opinion, I join my colleagues in finding that the Respondent violated the Act by discharging Saxton on July 3, 2014, suspending Saxton on July 23, 2014, and discharging Saxton again on September 28, 2014. 2 As my colleagues point out, the nondisclosure provision in Metro Networks was more broadly written, as it prevented the employee from discussing any aspect of his employment. But that does not alter the essential fact that Saxton, who had been the chief union steward for nearly 17 years, was required to keep confidential information that very likely could be relevant in future legal disputes between employees and the employer. As such, the confidentiality requirement burdened rights that existed for the benefit of the entire unit and sought to influence the resolution of future disputes unrelated to the facts that gave rise to the settlement. 1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD certedly for their “mutual aid or protection.” See gener- ally Fresh & Easy Neighborhood Market, 361 NLRB 151, 156 (2014) (explaining that the scope of the “mutual aid or protection” clause of Sec. 7 must be understood in light of the “solidarity” principle, which holds that a sin- gle aggrieved individual’s coworkers “have an interest in helping the aggrieved individual—even if the individual alone has an immediate stake in the outcome—because ‘next time it could be one of them that is the victim.’”) (citations omitted). Thus, contrary to my colleagues’ view, the settlement agreement does interfere with the Section 7 rights of Saxton and his coworkers in future, unrelated situations. Unlike my colleagues, moreover, I am not persuaded that the Board’s favorable disposition toward the private resolution of labor disputes outweighs those fundamental Section 7 rights. It is telling that here (in contrast to Co- ca Cola, supra) the Union was not even a party to the agreement. That Saxton received a benefit from the agreement, meanwhile, is not enough to save it. Section 7 rights are public rights, which employees generally are not free to trade away. See, e.g., Metro Networks, supra, 336 NLRB at 66, citing Mandel Security Bureau, Inc., 202 NLRB 117, 119 (1973). Likewise, I do not agree that the Union’s supposed ability to discuss Saxton’s discipline nullifies the impact of the nondisclosure provision. First, the confidentiality agreement says that any disclosure—not just disclosure by Saxton—“may lead . . . to termination” of Saxton. That broad language seemingly would bar Saxton from discussing the settlement even when acting in his capaci- ty as a union steward. Second, even if the Union were free to discuss the settlement of Saxton's discipline, it could not draw on Saxton to do so—and Saxton himself may have information to which only he is privy and only he could share with his coworkers or introduce into evi- dence in a future disciplinary proceeding, my colleagues’ speculation notwithstanding. If the Respondent’s goal here was to ensure that Sax- ton’s settlement would be nonprecedential, it surely could have pursued an agreement to that effect with the Union. But whatever the Respondent’s goal was, the means it used cannot be squared with Board precedent. I therefore respectfully dissent from my colleagues’ finding that the confidentiality provision in the settle- ment does not violate the Act APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT discharge, suspend or otherwise discrim- inate against any of you for filing charges or participat- ing in proceedings before the National Labor Relations Board. WE WILL NOT discharge or otherwise discriminate against any of you for engaging in protected concerted activity. 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 Richard Saxton full reinstatement to his for- mer 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. WE WILL make Richard Saxton whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL compensate Richard Saxton for the adverse tax consequences, if any, of receiving a lump-sum back- pay award, and WE WILL file with the Regional Director for Region 5, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year(s). WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful suspension and discharges of Richard Saxton, and WE WILL, within 3 days thereafter, notify Richard Saxton in writing that this has been done and that the suspension and discharges will not be used against him in any way. S. FREEDMAN & SONS, INC. S. FREEDMAN & SONS, INC. 1211 The Board’s decision can be found at www.nlrb.gov/case/05–CA–121221 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. Brendan Keough, Esq. for the General Counsel. Scott Kamins, Esq. (Offit Kurman), of Maple Lawn, Maryland, for the Respondent. Lauren P. McDermott, Esq. (Mooney, Green, Saindon, Murphy, & Welch, P.C.), of Washington, D.C., for the Charging Par- ty. DECISION STATEMENT OF THE CASE MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Washington, D.C. on January 21–23 and 26, 2015. The complaint is based on timely-filed charges by the Drivers, Chauffeurs and Helpers Local Union No. 639, a/w International Brotherhood of Teamsters (the Union) alleging that S. Freed- man & Sons, Inc. (the Company) violated Sections 8(a)(1), (3), and (4) of the National Labor Relations Act (the Act)1 by retali- ating against employee and union steward Richard Saxton by suspending and terminating him because of his membership in and activities on behalf of the Union, and for his participation in charges filed against the Company with the National Labor Relations Board (NLRB). Additionally, the complaint alleges that the Company unlawfully restricted Saxton’s Section 7 rights by conditioning his reinstatement on a confidentiality agreement that precluded him from discussing his discipline and the related grievance settlement. The Company denies the allegations and alleges that the discipline was appropriately issued in response to Saxton’s misconduct and Saxton waived his rights by signing a narrowly tailored confidentiality agree- ment. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, Union and the Company, I make the following FINDINGS OF FACT I. JURISDICTION The Company, a corporation, provides paper products and maintenance supplies from its facility in Landover, Maryland 1 29 U.S.C. §§ 151–169. (the facility), where it annually sells and ships goods valued in excess of $50,000 directly to points located outside the State of Maryland. The Company admits, and I find, that it is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organ- ization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Company The Company delivers paper and restaurant products to hos- pitality providers from its facility to customers from Newark, Delaware to Tidewater, Virginia. It has approximately 135 employees, including 25 truckdrivers and 30 warehousemen. The facility includes a warehouse, which includes administra- tive offices, an adjacent parking lot, and leased delivery trucks. The Company’s owner, Jeff Freedman, has delegated over- sight responsibility for the Company warehouse and delivery operations, and collective-bargaining operations to James Thompson, vice president of finance and operations. Meg Phil- lips, the Company’s human resources director, reviews disci- plinary decisions for compliance with applicable regulations and prepares the applicable documentation. In the end, howev- er, she essentially implements Thompson’s determinations. Ellis Brown, as transportation supervisor, oversees the delivery truck drivers. Joe Smith, the warehouse manager, is responsible for the daily operations of the warehouse. 2 B. Richard Saxton Richard Saxton, the discriminatee, was employed 26 years by the Company as a truckdriver delivering Company products to customers. In that capacity, he possessed a commercial driv- er’s license from the State of Maryland.3 At the time of his termination on October 2, Saxton was the most senior truckdriver. After clocking in, Saxton typically started his shift by picking up his customer manifest, truck keys and Company cellular telephone from the warehouse area. Af- ter inspecting his vehicle and completing an inspection report, Saxton would exit the facility and start his delivery route. Upon finishing his delivery route, Saxton returned to the facility. After preparing his truck for the next workday by cleaning, refueling and restocking it, Saxton took the manifest to Crystal Moore, the accounting clerk. Her window was located next to the transportation office where Brown, Saxton’s immediate supervisor, was situated. After she approved it, Saxton clocked out.4 He frequently worked overtime beyond the end of his shift at 2:15 p.m.5 2 The weight of the credible evidence strongly suggests that Thomp- son, with Freedman’s approval, usually makes the final determinations in disciplinary matters. (Tr. 330–331, 343–344, 560–562, 571.) 3 There is no evidence to dispute Saxton’s credible testimony that he consistently maintained a valid driver’s license while employed by the Company. (Tr. 123–124.) 4 Thompson expressed his concerns with Settles at the time about the amount of time that Saxton took before starting his route and after completing it. (Tr. 496–497.) 5 The CBA defines overtime as work performed in excess of an 8- hour shift. (GC Exh. 2 at 6.) 1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. The Union The Union has been the exclusive bargaining representative of the Company’s drivers and warehousemen for approximately 50 years. The current collective-bargaining agreement, (CBA) is effective from March 1, 2013, to February 28, 2017.6 Tommy Ratliff is the Union’s president. Wayne Settles, the Union’s business agent for the Company’s drivers and ware- housemen, represents the bargaining-unit in contract negotia- tions and grievances. For the past several years, Saxton, Ant- woine Drayton and Henry Davis served as the union shop stew- ards. In that capacity, they filed grievances, and participated in grievance meetings and contract negotiations. Saxton was the senior steward, having served for nearly 17 years. He filed approximately seven grievances a year and most recently par- ticipated in bargaining during February 2013.7 D. The October 25th Suspension The downward spiral in Thompson’s relationship with the Company began on October 25, 2013,8 when Thompson sus- pended him for refusing to obey a supervisor’s order.9 The suspension notice stated Saxton violated rule 2(h). Rule 2(h) of the bargaining-unit work rules authorizes termination for refus- ing a supervisor’s order.10 Saxton filed a grievance regarding his suspension and a grievance meeting was scheduled for No- vember 18.11 E. The November 18th Termination Prior to the November 18 grievance meeting, Saxton was in- volved in an accident while driving a Company truck. He was issued a citation for following too closely and a court date was scheduled for January 23.12 The case was resolved with no points assessed, but the citation remained on Saxton’s driving record.13 On November 11, Thompson issued Saxton a pending inves- tigation letter concerning his accident.14 The investigation letter refers to section 1(a) of the bargaining-unit rules which states that a driver could be terminated if damages exceed $2000.15 Shortly before the November 18 grievance meeting, Thompson received a damage estimate for Saxton’s accident indicating damage to the other vehicle in excess of $2000.16 On November 18, Saxton, accompanied by Settles, met with 6 GC Exh. 2. 7 Saxton had extensive involvement as a steward, but there is no evi- dence of preexisting animosity between him and management. (Tr. 61– 66.) 8 All dates are between October 25, 2013, and October 2, 2014, un- less otherwise indicated. 9 GC Exh. 7. 10 GC Exh. 3 at 2. 11 GC Exh. 8. 12 R. Exh. 2. 13 Saxton conceded that the infraction remains on his record. (Tr. 237–238, 300–301, 642–645; GC Exh. 17; R. Exh. 2.). 14 GC Exh. 9. 15 The Company subsequently modified bargaining-unit work rule 1(a) by increasing the damage amount to $5000. (GC Exh. 3 at 1.) 16 The General Counsel contests Thompson’s estimate of $9,000 in damages, but Saxton did not deny that they exceeded $2000. (GC Exh. 9; R. Exh. 3; Tr. 240–241, 643–648, 674–676.) Thompson and Phillips for a scheduled meeting relating to his grievance of the October 2013 suspension for disobeying a supervisor’s order. Thompson changed course at the beginning of the meeting, however, by informing Saxton and Settles that he was going to address Saxton’s November accident. Thomp- son said the damages exceeded $8000 and he was inclined to terminate Saxton. However, Thompson offered to forego such drastic action if the Union agreed to withdraw several unrelated arbitrations involving other employees. Saxton and Settles re- fused the offer, with Settles insisting that he would address each grievance separately. Thompson responded by informing Saxton that he was terminated. Saxton asked Thompson if Freedman knew about this action. Thompson said Freedman approved Saxton’s termination.17 On November 19, Saxton received a termination notice,18 making him the first employee ever terminated by the Company as a result of a motor vehicle accident.19 After Saxton left the meeting, he immediately went to Freedman’s office and informed him that Thompson fired him after Settles refused to settle pending unrelated arbitrations. Freedman, who was unaware that Saxton had been terminated, spoke with Thompson and, later that afternoon, called Saxton and arranged a meeting with him and the Union for the follow- ing day. The next morning, Saxton met with Freedman and Phillips. They discussed Thompson’s recent change of work rule 3(c), which indicates the amount of time a driver has to start his delivery route.20 Then they discussed Thompson’s offer to reduce Saxton’s termination in exchange for the Union withdrawing arbitrations. Freedman suggested Saxton speak to the Union about setting up a meeting between the Company and the Union to discuss the pending arbitrations. Saxton de- clined, but suggested Freedman call the Union about the arbi- trations.21 On November 20, with Saxton waiting outside, Settles met with Freedman in Phillips’ office. Settles told Freedman he would not withdraw pending arbitrations in exchange for Sax- ton’s reduced discipline. Referring to his affinity for Saxton, as well as his longtime relationship with the Company, Freedman indicated that the termination resulted from a misunderstanding and would get back to him. The next day, after speaking with Settles and Ratliff, Freedman agreed to reinstate Saxton on 17 I credit the fairly consistent and credible versions by Settles and Saxton of this meeting over that provided by Thompson. (Tr. 69–73, 87–90, 259–269, 484–487, 533–536.) Thompson conceded that other grievances were discussed, but denied offering to reduce Saxton’s termination in exchange for the Union withdrawing pending arbitra- tions. The notion that Thompson terminated Saxton and then discussed other grievances while Saxton was still there was not credible. (Tr. 674–677.) 18 GC Exh. 10. 19 The Company concedes the disparity in its lesser discipline of Gregory Johnson for a previous accident exceeding $5000 in damages, but distinguishes it on the basis that Johnson was a supervisor and not subject to the CBA. (GC Exh. 32; Tr. 579–580.) Johnson was subse- quently involved in another motor vehicle accident, but was discharged only after failing a drug test. (GC Exh. 33.) 20 GC Exh. 3 at 3. 21 This finding is based on Saxton’s credible and undisputed testi- mony. (Tr. 90–100.) S. FREEDMAN & SONS, INC. 1213 November 22 and provide him with gift cards as compensation for any lost income.22 F. The November 25th Confidentiality Agreement Saxton reported to work on November 22. Before clocking in, however, Thompson handed him a last-chance agreement and said that Saxton needed to sign it before he could be rein- stated. Saxton was familiar with such agreements, having pre- viously signed similar documents as a steward. As such, he expressed surprise that the agreement was not already signed by a union representative. Thompson reiterated that Saxton could not return to work unless he signed the document. Saxton left the facility and informed Settles, who did not know about the agreement. Saxton then called Freedman and asked if he was aware of the agreement. Freedman was also unaware of it, but told Saxton to return the next workday.23 At some point later that day, Ratliff and Settles called Freedman. Freedman proposed to convert Saxton’s discipline to a suspension for time served if he signed an agreement not to discuss the terms of his reinstatement. Ratliff agreed to consid- er such an agreement, but wanted to review it first. Rather than provide a draft to the Union, however, Thompson surprised Saxton with a confidentiality agreement when he returned to work on November 25. Although Settles had not yet seen the confidentiality agreement, Saxton signed the document and returned to work.24 The agreement stated: I, Richard Saxton, have entered into an agreement this day, November 25, 2013 with S. Freedman & Sons (the Company) regarding my return to work after my termination on Tuesday, November 19, 2013. I have accepted a suspension of four days in lieu of my termi- nation as a result of my accident on November 8, 2013. By accepting this suspension I waive my right to file a grievance against the Company regarding this termination or suspen- sion. I also understand and agree that this resolution is a one-time agreement and is not precedent setting. I understand and agree that the terms of this agreement will remain confidential and that any disclosure of this Agreement may lead the Company to take disciplinary action against me, up to and including the termination of my employment, even if I do not personally benefit from the violation. I understand and agree that if I breach this Agreement, the Company re- serves the right to avail itself of all legal or equitable remedies 22 This finding is based on Settles’ credible testimony. (Tr. 488–491, 531-541.) 23 This is a rare instance in which Freedman and Thompson were not on the same page. (Tr. 101–107, 241–244, 492–493.) Moreover, given the subsequent interaction between Settles and Freedman about the last- chance agreement, I did not credit Thompson’s testimony that he told Settles about such a document before presenting it to Saxton. (Tr. 648– 650, 654–656; GC Exh. 12; R. Exh. 4.) 24 Settles confirmed discussing the agreement with Freedman, but there is no credible evidence that he was shown the document before it was presented to Saxton. Moreover, Thompson’s denial of knowledge as to the source of the agreement further detracted from his credibility. (Tr. 107–109, 249, 491–493, 542–546, 551; GC Exh. 61.) to prevent the impermissible use of Confidential Information or to recover damages incurred as a result of the impermissi- ble use of Confidential Information.25 G. The December 20th Warning On December 20, Saxton had just returned to the yard at the end of his shift and was met by Brown, who proceeded to issue Saxton a verbal warning for failing to clock-out immediately at the end of work the previous day in violation of work rule 4(c). The warning stated that Saxton returned to the warehouse at 4:42 p.m. and clocked-out 1 hour and 40 minutes later.26 Bar- gaining-unit work rule 4(c) sets forth the Company’s discipline for, “failure to begin work immediately upon clock-in; or to clock-out immediately at the end of work.”27 This was the first instance, however, in which a Company driver had ever been disciplined for delay in clocking-out at the end of a shift.28 On December 27, Saxton filed a grievance over the Decem- ber 20th verbal warning.29 During the January 6 grievance meeting with Thompson and Philips, Saxton, accompanied by Settles, attributed the departure delay on December 19 to the significant wait time to refuel and attending, at the request of an unspecified supervisor, a disciplinary meeting relating to a coworker. Thompson did not accept Saxton’s explanation and the grievance was not resolved.30 G. The Union Files Charges On January 24, the Union filed charge 05–CA–121221 with Region 5 of the NLRB alleging the Company violated Section 8(a)(3) and (1) by disciplining Saxton on December 20 due to his union activities.31 On January 27, the Company received the charge.32 On March 28, the Union amended that charge to in- clude allegations relating to the November 18th refusal to re- scind Saxton’s termination unless the Union withdrew unrelat- ed grievances and arbitrations, and the Company’s November 25th requirement that Saxton sign a confidentiality agree- ment.33 On March 31, the Company received the amended charge.34 On April 25, Region 5 issued a complaint based on 25 GC Exh. 13. 26 GC Exh. 14. 27 The General Counsel contends that neither the bargaining-unit work rule, nor the collective-bargaining agreement, identify the amount of time a driver has to clock-out “at the end of work.” (GC Exh. 2; 3 at 6.) However, based on Saxton’s explanation, the last task before clock- ing out is handing in the manifest. 28 Saxton’s warning was one of 14 issued to drivers for violating similar work rules between October 2013 and August 2014. Two verbal warnings were issued prior to December 20, while 12 warnings were issued after that date. Saxton’s warning pursuant to work rule 4(c) was unique, however, since it dealt with a delay in clocking-out at the end of the day. The other 13 warnings pertained to work rules 3(b) and (c), which address delays in starting one’s shift after clocking in. (R. Exh. 5–6; 572–574, 659–661.) 29 GC Exh. 15. 30 This finding is based on the undisputed testimony of Saxton and Settles. (Tr. 111–112, 117–118, 495–497, 573.) 31 GC Exh. 1(A). 32 GC Exh. 1(B) at 3. 33 GC Exh. 1(C). 34 GC Exh. 1(D) at 3. 1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the aforementioned charges, with notice of hearing for July 8.35 Freedman, Thompson, and Phillips were subpoenaed to testify by counsel for the General Counsel.36 H. Saxton Accused of Driving with an Expired License One week before the hearing, Thompson saw an opportunity to retaliate. On July 1, Saxton called Ernest Henson, a supervi- sor, at approximately 4:30 a.m. and left a voicemail message that he was taking off “to get a license.”37 The message was conveyed to Brown, who proceeded to inform Thompson. Brown, who keeps copies of licenses on file, also shared that he reminded Saxton several months earlier, prior to going out on medical leave, about renewing his driver’s license prior to June 27. Thompson immediately decided to investigate.38 Brown’s report to Thompson omitted the fact that he did not follow up with Saxton about his driver’s license at any time after the latter returned from medical leave on June 9. Had Brown followed up, he would have learned that Saxton re- newed his driver’s license on June 4. In any event, after calling out on July 1, Saxton proceeded to get a “duplicate” license from the Maryland Department of Motor Vehicles and called Brown to let him know. Brown suggested that Saxton’s license expired on June 27, but Saxton denied it.39 On July 2, Saxton arrived at the facility but, before he could start his shift, Thompson pulled him into a meeting with Phil- lips and Drayton, acting as his steward. Saxton was immediate- ly handed a written warning for calling out on July 1 without sufficient leave time. Thompson then asked Saxton why he called out on July 1. Saxton said he had to get a license. Thompson said Brown told him Saxton’s license expired. Sax- ton denied that and explained that he lost his license. Thompson asked Saxton when he realized he lost his license. Saxton ex- plained that he realized on June 30 that he lost his license, but denied ever driving a Company truck on an expired license. He insisted that he was merely obtaining a duplicate license to replace the one he lost. Thompson accused Saxton of lying.40 Saxton denied lying, but Thompson’s persistent accusations took Saxton over an emotional edge. He slammed the table and capitulated, stating that if Thompson insisted Saxton was lying and the license expired, then the accusations must be true. Sax- 35 GC Exh. 1(E)-(F). 36 Freedman, Thompson and Philips knew that the case involved Saxton. (Tr. 39, 360, 569.) 37 There is no dispute regarding the message that Saxton left for Brown. (Tr. 124–125, 128–132, 209.) 38 Notwithstanding Brown’s alleged concern, there is no indication he attempted, on June 30, to ascertain whether Saxton drove on an expired license that day. (Tr. 623, 663, 667, 800–803, 815.) 39 The motor vehicle record of the June 4 renewal provides critical corroboration of Saxton’s assertion that he lost his license sometime after June 27. Construing the “duplicate” designation any other way does not make sense since it is incomprehensible that an expired license would be duplicated as opposed to simply renewed. (Tr. 123, 132–133, 135; GC Exhs. 17 at 5, 19–20, 52.) 40 Thompson and Phillips confirmed testimony by Saxton and Dray- ton that Saxton initially maintained that his license never expired. (136, 138, 211, 227, 341, 393–397, 440, 617, 620, 664.) ton then refused to say anything further and referred Thompson and Phillips questions to Drayton.41 Drayton then provided Thompson and Phillips with Saxton’s license and explained the D-1, or duplicate, designation.42 However, Thompson and Philips refused to concede its validity as proof that Saxton’s license had not expired prior to July 1. They followed up on that allegation by obtaining a copy of Saxton’s driving record, which also confirmed that his CL li- cense was renewed on June 4 and he was subsequently issued a duplicate license on July 1.43 After the meeting, Saxton drove his route. Later that day, Drayton again attempted to explain to Thompson the various codes on Saxton’s Virginia driver’s licenses, including the meaning of a “D” as a duplicate. Thompson, still focused on Saxton’s frustrated remark that the license had expired on June 27, did not want to hear it.44 J. The July 3rd Termination Notwithstanding the documentary proof provided by Saxton and Drayton on July 2, Thompson was determined to capitalize on Saxton’s remark at the meeting. As Saxton arrived at work on July 3, Thompson handed him a letter terminating his em- ployment: On Wednesday, July 2, 2014, we met with you regarding your call out on Tuesday, July 1, 2014. During this meeting, you claimed that you called out because you needed to obtain a new license. When questioned further, you acknowledged that although you had been notified by the Company, as a courte- sy, of the need to renew your license weeks ago, you had not done so, and it had expired on June 27, 2014. You admitted that, even though your license expired on June 27, and it was thereafter illegal for you to drive, you nevertheless ran your company route in your company truck on June 30, 2014, without a valid driver’s license. This was a violation of appli- cable law, and exposed the company (not to mention you) to serious penalties. This is considered a major offense. . . . 41 Notwithstanding Saxton’s rambling response that state law afford- ed drivers 7 days after a license expires to get one, (Tr. 217–218.), it was evident that he made the alleged concession out of frustration and feeling insulted, he deferred to Drayton for the remainder of the discus- sion. (Tr. 139, 213, 305, 398, 442–444, 452.) Drayton initially testified that he did not hear the remark, but later conceded on cross- examination that it was made. (Tr. 402, 447.) 42 The Company’s attempt to impeach Saxton with his Board affida- vit about lying during the July 2 meeting did not detract from the fact that he produced solid proof at that meeting that his license had not expired. (Tr. 217–218, 221, 234, 305.) Neither Thompson, who provid- ed inconsistent testimony and generated unreliable “notes” at some point after the meeting, nor Phillips, who was evasive and nonrespon- sive in many of her responses, disputed testimony by Saxton and Dray- ton that Saxton produced a duplicate license on July 2. (Tr. 140–141, 365, 398–399, 617–618, 620, 664, 704; GC Exh. 47.) 43 The explanation by Thompson, an experienced manager of a regu- lated interstate transportation company, as to why or how he misinter- preted the information on Saxton’s license status on July 2, was simply not credible. (338-340, 345, 352, 616, 621–622, 623, 625, 665; GC Exh. 52.) 44 Thompson did not dispute this portion of Drayton’s testimony. (Tr. 400–401.) S. FREEDMAN & SONS, INC. 1215 Work rule 6(h) provides that the penalty for any combination of two (2) major offenses in an eighteen (18) month period is termination. In your case, the most recent infraction is your third major offense in a period of just over eight months. Ef- fective today, July 3, 2014, your employment is terminated.45 Even assuming that Saxton had driven with an expired li- cense on June 30, such discipline was unprecedented.46 Moreo- ver, the letter omitted any reference to the documentary proof provided by Saxton at the July 2 meeting and misconstrued the timeframe (several months earlier) in which Brown reminded Saxton to renew his license.47 On July 3, Settles filed a grievance on Saxton’s behalf re- garding Saxton’s termination for driving with an expired li- cense.48 K. The Union Files a Charge Over Saxton’s July 3 Termination On July 3, the Union filed charge 05–CA–123327 with Re- gion 5 alleging that the Company violated Sections 8(a)(3) and (4) by terminating Saxton on July 3 in retaliation for engaging in protected-concerted activities, and filing and participating in charges filed against the Company.49 On July 3, Region 5 re- scheduled the hearing from July 8 to October 6.50 On July 8, Region 5 served the Company with charge 05–CA–123327.51 L. The July Grievance Meetings On July 8, Settles and Saxton met with Thompson and Phil- lips to discuss Saxton’s July 3 termination. Settles asked whether they were now convinced that Saxton had, in fact, renewed his driver’s license on June 4. Philips responded that her copy of Saxton’s records indicated only that he received a license on July 1. Saxton then produced copies of his Maryland motor vehicle records indicating renewal on June 4 and issu- ance of a duplicate license on July 1. However, Phillips and Thompson still refused to budge, maintaining that Saxton was terminated because of his July 2 statement that his license ex- pired. Saxton then explained that he omitted any reference to losing his license because he lost it while visiting Region 5 staff and did not want to divulge such activity. Thompson responded that he and Philips were misled, but Settles rejected that claim, 45 GC Exh. 23. 46 Although not specified in the letter, Thompson testified that Sax- ton’s “violation of applicable law” was analogous to conduct prohibited in work rule 2(o), which authorizes termination if a driver is convicted of reckless driving or has his license revoked for any reason. (Tr. 665, 667; GC Exh. 3 at 2.) In any event, the Company provided no evidence that a driver has ever been disciplined under such a work rule. 47 Thompson’s representation that Saxton was reminded about the renewal is belied by Brown’s testimony that he reminded Saxton sever- al months earlier. (Tr. 663, 802.) Moreover, Thompson never changed the discipline to a charge that Saxton knowingly drove his company vehicle on June 30 without a valid license. (Tr. 664.) 48 GC Exh. 24. 49 GC Exh. 1(H). 50 GC Exh. 1(K). 51 GC Exh. 1(I) at 4. again referring to the documentary proof provided to them prior to terminating Saxton.52 The July 8 meeting concluded with Thompson still refusing to reinstate Saxton and telling Saxton that he would get back to him. After several attempts by Thompson to set up a meeting with the Union, one was finally scheduled for July 16 to further discuss Thompson’s concerns with the “inconsistencies” in Saxton’s statements. 53 Prior to that meeting, however, Thompson attempted to ex- pedite matters without Settles present by approaching Drayton in his truck and urging him to contact Saxton. While still insist- ing that Saxton admitted at the July 2 meeting that his license expired, Thompson suggested that the three of them meet so Saxton could return to work. Drayton declined to convene such a meeting without Settles present.54 On July 16, Saxton, Settles and Drayton met with Thompson and Phillips to discuss Saxton’s July 3 termination. Thompson again questioned Saxton about his license. Settles refused to allow Saxton to answer any questions, reiterating his position that Saxton neither permitted his license to expire nor drove a Company truck on an expired license. At Thompson’s insist- ence, Saxton left the room and Thompson sought to have Dray- ton admit that Saxton said that his license expired during the July 2 meeting. After Drayton denied that Saxton made such an admission, Drayton and Settles got into an extensive discussion about the July 2 meeting. Drayton and Settles concluded by again relying on the fact that Thompson and Philips should have been able to confirm that Saxton’s commercial driver’s license was renewed on June 4. Thompson and Philips, howev- er, continued to challenge the validity of the information, sug- gesting that it was either not entirely understandable, vague or possibly falsified. Settles ended the meeting by asking for the Company’s written position.55 M. The Company Opposes Saxton’s Unemployment Benefits Claim On July 17, 1 day after the final grievance meeting, Phillips responded to Saxton’s claim for unemployment benefits with 52 This finding is based on the testimony of Settles, Thompson and Saxton. (Tr. 149–151, 155–157, 231–232, 449, 498-501, 503, 523–525, 628, 667–668.) Thompson incredibly posited that he learned for the first time on July 8 that Saxton had not driven on an expired license after Settles showed him the Maryland motor vehicle record. Yet, Thompson admitted the information contained in Settles’ copy of Sax- ton’s driving record was the same as the information in his July 2 copy of Saxton’s driving record. (Tr. 630; GC Exh. 17 at 4; GC Exh. 52.) 53 While I credit Thompson’s undisputed testimony that he attempt- ed to set up earlier meetings on July 9 and 10, I do not credit his hear- say testimony, which continued to conflict with the weight of the credi- ble evidence, that a “vendor” gave him less than certain information as to whether Saxton renewed his license on June 4. (GC Exh. 64; Tr. 632, 635, 668, 673.) 54 This finding is based on Drayton’s credible and undisputed testi- mony. (Tr. 405–406.) 55 Drayton conceded that Saxton admitted at the July 2 meeting that his license expired, but did so out of frustration. (Tr. 447.) Otherwise, the testimony by Saxton, Drayton and Thompson about this meeting was fairly consistent. (Tr. 158, 328, 407–411, 505, 509–510, 673; R. Exh. 9.) 1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Maryland Department of Labor. In her online submission to the state agency, Philips continued to espouse the Company’s position that Saxton knowingly drove a Company truck without a valid driver’s license.56 In a followup statement on July 18, Phillips provided the Maryland Department of Labor with additional false state- ments: The clmt’s license expired on 6/27/14. That was a Friday. Then he drove without a valid license on Sat. 6/28 and Mon- day, 6/30. He called on Tuesday and said he would not be in, because he had to renew his license. When he came back on Wed, we interviewed him. At first he admitted it had expired, and he knew it. However, during the course of the investiga- tion, he changed his story to say that he had lost his license, and it hadn’t expired. However, I keep track of all the driver’s licenses, and had no- tified the clmt about a month in advance, that his license was expiring on his birthday, 6/27/14. It is the driver’s responsibil- ity to make sure they renew their licenses on time, so I hadn’t rechecked to see if he had actually renewed it. When he told us he had to renew it, we realized he had driven for 2 days on an expired license, putting the company at risk, so he was dis- charged. We had a meeting with the clmt and the union rep and the clmt proved that his license had been renewed on 6/4/14, as he stated. He had not been driving on an expired license, but three of us in that first meeting with him, when he was termi- nated, heard him say his license had expired. Then he changed his story and ever since has been saying he had just lost his li- cense. We are bringing him back to work, effective this next Mon- day, 7/28/14, as he proved his license had not expired, and we could not prove that he had knowingly driven without a li- cense. I am changing his separation reason to an unpaid sus- pension, with the rtw of 7/28/2014. He kept insisting that he had lost his license, and didn’t realize it until he had to show it at a security checkpoint, as he told you. He will be brought back to work on 7/28/14, but will not receive back pay for the weeks he was suspended, as we still feel he lied to us about his license being expired.57 56 Given her testimony and the documentary proof provided to her, Phillips’ assertion that Saxton drove a Company vehicle on an expired license was a fabrication. (Tr. 335, 337; GC Exh. 55, 60 at 5–6.) She testified she became convinced Saxton did not drive with an expired license after the July 8 grievance meeting. (Tr. 335–338.) However, after the July 8 and 16 grievance meetings, Phillips gave a different story to the Maryland Department of Labor. 57 Contrary to the representations in her statement, Phillips testified that she does not keep track of truckdriver’s licenses. Nor did she notify Saxton that his license was expiring. (GC Exh. 60 at 5–6; 328–329, 338, 340–341, 353.) The Maryland Department of Labor determined that the Company provided insufficient evidence of Saxton’s miscon- duct and awarded him unemployment benefits.58 N. Saxton’s Termination is Converted to an Unpaid Suspension On July 23, Thompson reinstated Saxton. The letter, which was addressed to Settles, stated in pertinent part: By the conclusion of the meeting on July 8, it was not clear, per Richard’s changing stories, what actually happened . . . We have decided to reinstate Richard effective immediately, and to treat his time off from work as an unpaid suspension, and a major offense, for dishonesty. Although it is now un- clear to us whether Richard drove without a license on June 30, it is clear to us that Richard was dishonest during the course of our investigation. . . 59 Saxton returned to work on July 23. On July 24, Settles grieved the suspension.60 On September 10, Region 5 served the Company with a consolidated complaint, compliance speci- fication, and notice of hearing for October 6. In addition to the allegations contained in the previous complaint, the new com- plaint included allegations relating to the July 3 termination and its reclassification to a suspension on July 23.61 On September 16, Freedman, Thompson, and Phillips were, once again, sub- poenaed by the General Counsel for the upcoming hearing.62 O. The September 29 Termination Between 2:30 and 3 p.m. on September 29, Saxton and three coworkers—Leroy Goodman, Harry Bowie and Steve Wil- liams—returned to the facility after completing their delivery routes. Around that time, Thompson instructed Brown to direct Saxton to take a Company truck to be serviced at a nearby re- pair shop. At that point, the truck had already been parked on the lot with a broken window for 6 days.63 After parking his vehicle, Saxton went to turn in his manifest at the transportation office. As he arrived, Goodman had just turned in his manifest. Saxton did the same and then Brown, sitting about 6 feet away, asked if Saxton could do him a favor 58 The State agency’s determination, governed by a different stand- ard, has no bearing on the merits of this proceeding. (GC Exh. 54, 60 at 7.) 59 Thompson’s assertion that he believed that Saxton lied during the investigation was contradicted by Philips testimony that they were really confused all along. (Tr. 345; GC Exh. 25.) 60 GC Exh. 26. 61 GC Exh. 1(L)-(M). 62 Freedman, Philips and Thompson again conceded knowing that the subpoenaes related to Saxton’s discipline. (Tr. 40, 360–361, 568– 569.) 63 I do not credit testimony by Thompson that he suddenly noticed, on a day when no rain was forecast, a damaged window on a vehicle that had been parked on the lot for 6 days. The credible evidence sug- gests that they were aware that the other four drivers were completing their shifts around the same time as Saxton. (Tr. 163–164, 603–604, 677–678, 709–710, 787, 804, 829.) Moreover, four other drivers clocked out during the same time period. (GC Exh. 36.) S. FREEDMAN & SONS, INC. 1217 and take a truck to Ryder for window repairs.64 Saxton told Brown his 8 hours were up and he was on overtime. Saxton insisted Brown get a junior driver to take the truck to Ryder. He had a point, since there was no shortage of junior drivers that afternoon. There was no yelling during this initial conversa- tion.65 After Saxton declined the request, Brown walked up to Sax- ton and continued the conversation next to the transportation window. After Brown asked for an explanation, Saxton insisted he had the contractual right to refuse because he was the senior driver and had a right to refuse overtime. He took out the CBA and urged Brown to read it. As Brown and Saxton continued arguing, their voices got progressively louder. Thompson heard the noise and joined Brown in demanding that Saxton take the truck to Ryder for repair.66 Thompson insisted that Saxton could not refuse the assignment because he was the only driver available.67 Shortly thereafter, Smith approached and the three supervisors surrounded Saxton. Saxton maintained that, as the senior man, he was entitled under the CBA to refuse overtime work. The incident was witnessed by two warehousemen, Da- vid Wallace and Kem Singh, standing 20 and 50 yards away, respectively, who heard Saxton yell, “[n]o, I’m not going to do it!”68 Thompson told Saxton to punch out and not return the next day. Saxton clocked out at 3:07 p.m.69 Saxton clocked-out, walked to the parking lot and, upon see- 64 Brown did not dispute credible testimony by Saxton and Drayton that Goodman arrived around the same time and was present when he turned in his manifest. (Tr. 163–166, 412–414.) 65Approximately seven truckdrivers were available during the period of time after Saxton finished his regular shift. (Tr. 173–174, 605; GC Exh. 36, 40, 63.) 66 Thompson’s denials that he told Saxton to take the truck to Ryder and then told Saxton to punch out and not to return the following day are undermined by the weight of the credible evidence, the subsequent termination letter, and the Company’s position statement. Moreover, Thompson’s immediate response to the incident, coupled with the lack of explanation as to why he did not ask a less senior employee to take the truck to Ryder, further confirms his motivation to target Saxton. (Tr. 166–167, 173, 273, 375, 584, 587, 609, 611, 679, 782, 789–790, 804, 806–807; GC Exh. 27, 39, 40 and 46 at 2.) 67 Thompson was obviously aware that a driver has a right to refuse an overtime assignment when a junior driver is not available. (GC Exh. 59 at 6.) 68 Although received in evidence as a record allegedly obtained by Phillips in the regular course of business pursuant to FRE 803(6), I gave the statement, which was prepared by Phillips for Wallace a few days before an NLRB hearing, no weight as both unreliable and pre- pared for the ensuing litigation. (R. Exh. 12–13; Tr. 751–755.) Instead, I rely on my credibility assessment of Wallace’s testimony. (Tr. 749.) 69 The weight of the credible evidence indicates that Saxton and Brown were talking loudly at the outset, followed by Saxton and Thompson yelling after the latter joined the fray. Saxton and Thompson were yelling during much of their heated exchange, so loud that an employee operating heavy machinery nearby heard Saxton’s voice. (Tr. 166–167, 171–172, 174, 273, 277, 285, 611, 679–680, 749, 776, 782, 789–790, 804; GC Exh. 27, 34, 39–40, 63.) I found Singh and Wallace credible in their assessments of the loudness of the voices. (Tr. 372– 373, 749–750, 765.) I also credit the testimony of Brown that Saxton used profanity. (Tr. 790, 807.) A professed “religious” man and friend of Saxton before the incident, Brown credibly explained the failure to mention that in his written statement. (Tr. 790, 807; GC Exh. 39.) ing driver Dennis Wade, yelled into the warehouse that Wade was available to take the “fucking truck” to Ryder. Thompson did just that and had Wade take the truck to Ryder. Shortly thereafter, Thompson, Wade, and Wallace provided Philips with emails describing the incident.70 Thompson’s statement said that Saxton refused the order to take the truck because overtime was not guaranteed. That was inaccurate since Saxton simply refused and insisted that a junior driver be asked to do it.71 Drayton, seeing Saxton walking in the parking lot visibly up- set, walked up to him and asked what was wrong. Referring to Thompson, Saxton said that “this motherfucker fired me again.” They were approximately 20 yards from the warehouse entrance at this point. After further discussion, Saxton and Drayton went to Phillips’ office. Saxton left to speak with Freedman, while Drayton insisted that Saxton’s discharge vio- lated Article 3(D) of the CBA. At that point, Thompson joined the discussion and asked Drayton if he heard Saxton curse at Thompson. Drayton confirmed that Saxton cursed in the park- ing lot, but then sought to change the discussion back to the applicable CBA provision. Thompson was not interested. Meanwhile, Saxton approached Freedman about the discharge. Freedman was unaware of that development and urged Saxton to discuss it with Thompson. Saxton returned to Philips’ office, but Thompson refused to speak with him. At that point, Saxton and Drayton left. Shortly thereafter, Saxton informed Settles of his termination. Settles told Saxton that he would speak with Thompson. Approximately 30 minutes later, Settles told Saxton to return to work the next day.72 P. Saxton’s October 2 Termination Saxton returned to work on September 30 and drove his de- livery route, which ended after 2 hours of overtime. As he de- livered his manifest to Moore in the warehouse, Brown called out to him. Saxton replied, “[w]hat is that, Mr. Remus?” Brown said that Thompson wanted to see him. Saxton replied that his shift was over and he would not speak with Thompson because he was advised against it by the Union. He clocked-out at 4:43 p.m. and left the facility.73 70 Smith and Wallace omitted any reference in their written state- ments to Saxton’s use of profanity, but I found their testimony credible with respect to Saxton yelling and cursing during the argument with Thompson. (Tr. 173, 473–475, 606–607, 680, 777; R. Exh. 12; GC Exh. 36, 40, 63.) 71 I do not place much significance in the fact that Thompson’s statement also omitted any reference to Saxton yelling in the transporta- tion office or using profanity. (GC Exh. 4, 39, 63; Tr. 607, 679–680.) There is no doubt that both were yelling. However, Thompson’s testi- mony that he offered to have someone drive Saxton back was not cred- ible. That was omitted from his statement and was inconsistent with the testimony of Brown and Smith. 72 Saxton, Thompson and Drayton provided fairly consistent testi- mony regarding the discussions after Thompson discharged Saxton. (Tr. 174–178, 414–417, 422–426, 611–612.) 73 Notwithstanding Thompson’s request that Brown, Moore and Smith provide second, more detailed reports of what Saxton said on September 30, I found their testimony fairly credible regarding Sax- ton’s demeaning reference to a fictional character. (178-182, 293, 302, 307, 738, 741, 769, 771–772, 778, 780, 791–793; R. Exh. 7–8, 11; GC 1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD After leaving the warehouse, Saxton found Drayton in the parking lot waiting to carpool home. After telling Drayton that Thompson wanted to meet with him, Drayton noted that Thompson wanted to meet with him as well. Drayton then asked Saxton to wait in the parking lot while he went to meet with Thompson. Drayton returned to the facility and searched for Thompson between 4:45 and 5 p.m., but could not locate him. He returned to the parking lot, informed Saxton that Thompson could not be found and suggested they leave. Before doing so, however, Saxton called and spoke with Brown at 5 p.m. Saxton asked Brown if Thompson was around and to con- firm that Saxton was working the next day. Brown told Saxton that he had a route the next day, and to tell Drayton that Thompson did not need to see him anymore. During this con- versation, Brown did not instruct Saxton to return to the facility to meet with Thompson. The conversation concluded and Sax- ton and Drayton left.74 Thompson, evidently ensconced in his office while Drayton went looking for him, was preparing a paper trail of the earlier incident with Brown. Brown sent Thompson an email at 4:45 p.m. stating, “I told him you needed to talk to him, I don’t think he is going to wait, you may want to come out now and catch him.” Thompson responded approximately 35 minutes later and instructed Brown to “[p]lease email me exactly what Richard said to you.” At 5:23 p.m., Brown responded that he told Sax- ton that Thompson wanted to talk to him and Saxton responded that his shift was over and would not talk to Thompson because he was advised to refrain from such communication.75 On October 1, Saxton had an uneventful workday, which in- cluded communicating with Thompson about maintenance issues with his truck. Upon arriving to work on October 2, however, Thompson pulled him aside. Thompson initially indi- cated that he would wait for Drayton, but then asked another driver, Harry Bowie, to serve as Saxton’s representative. In an open setting witnessed by several other drivers, Thompson informed Saxton he was terminated and handed him a termina- tion letter. Saxton replied that Thompson would regret that action, leading Thompson to ask if Saxton was threatening him. Saxton explained that he was merely referring to the upcoming NLRB hearing.76 The letter, stated, in pertinent part: On Monday, September 29th, after you returned from your route, and while you were still on the clock, Transportation Supervisor Ellis Brown asked you to return a truck to Ryder for repair. Although Ryder is only around one mile away from Exh. 34, 65–66.) Their additional emails were also received pursuant to FRE 803(6) on the representation that it was customary for the Compa- ny to obtain such information in similar circumstances. Although con- sidered for the potentially inconsistent nature of the statements consid- ered therein, I did not consider them reliable and, thus, did not accord them any weight. 74 Brown did not dispute the credible testimony by Saxton and Dray- ton regarding this conversation. (Tr. 182–184, 186–187, 194, 208, 298, 429, 431–434, 436–437; GC Exh. 65.) 75 Thompson did not provide a credible explanation as to why he ig- nored Brown’s suggestion that he catch Saxton while he was still there. (Tr. 595–596.; GC Exh. 65.) 76 I base this finding on Saxton’s credible and undisputed testimony. (Tr. 195–197.) our facility, the truck needed to be transported there, you were the only driver present who was on the clock; and it would have only taken you a few minutes, you refused. I approached you and Ellis while you were refusing to perform this task. I explained to you that we needed you to take the truck to Ry- der for us, and that you were the only driver who was at the facility at the time. In response, you began screaming at us that you had seniority and did not have to take the truck. Sev- eral times I asked you to calm down, and to reconsider your refusal. You continued yelling that you did not have to do so, that you weren’t going to take the truck, all while using pro- fanity. After you refused at least four or five times; I finally told you to punch out and leave. On Tuesday, September 30, I asked Ellis to direct you to come to speak with me and Meg after you returned from your route. Before making a final decision on how to address your conduct the prior day, we wanted to speak with you to provide you with the opportunity to explain your actions. When Ellis directed you to come to see me, you refused. You punched out, told Ellis that you would not speak with me, and left. On September 29 and 30 you repeatedly refused to follow a su- pervisor’s order, and also engaged in insubordination to man- agement. Work rule 2(h) of the bargaining unit work rules provides that the penalty for “refusal to follow a supervisor’s order” is “Termination.” Work rule 2(d) provides that the penalty for “insubordination to management” is “Termina- tion” for a 2nd offense. Violations of these work rules are considered “Major Offenses”… Work rule 6(h) provides that the penalty for any combination of two (2) major offenses in an eighteen (18) month period is termination. In your case, the most recent infractions comprise your third major offense in a period of just over ten months. Effective today, October 2, 2014, your employment is terminated.77 Thompson’s termination letter added an additional insubor- dination charge based on Saxton’s refusal to meet with Thomp- son when initially directed to do so by Brown. However, Sax- ton responded in similar fashion in February 2014 by refusing to attend an impromptu disciplinary meeting without a steward present when Thompson sought to meet with him about a work rule 4(c) violation. On that occasion, Saxton was not disci- plined.78 After being terminated on October 2, Saxton filed for unem- ployment benefits with Maryland’s Unemployment Insurance Office. The Company opposed the application on the grounds that Saxton’s termination resulted from misconduct, but the State agency determined on November 21, 2014, that there was insufficient evidence to support such a finding.79 77 GC Exh. 27. 78 It is undisputed that Saxton refused to meet with Thompson and Brown in February 2014, that Thompson requested to speak with Dray- ton on September 30, and that Thompson did not discipline Drayton for failing to meet with him on September 30. (Tr. 20, 121–122.) 79 The “fact finding” in the report is a mere compendium of state- ments submitted by the Saxton, Thompson, Philips, Settles and Brown which are fairly consistent with their testimony. (GC Exh. 59.) In any event, the State agency eventually determined, under standards that are S. FREEDMAN & SONS, INC. 1219 Q. Comparable Prior Disciplines Prior to Saxton’s termination on October 2, the Company disciplined three employees for insubordination during the previous four years. None, however, involved a refusal to work overtime or meet with a supervisor. On June 6, 2012, James Harley, a truck driver, was issued a final warning for insubordination. Harley refused to go out on delivery and argued with management over the issue. There is no indication that overtime was an issue. On May 2, 2013, Har- ley was issued another warning for hanging up his Company- issued cellular telephone on Brown while Harley was making deliveries. Although Harley has hung up on Brown several times, this is the first time that he was disciplined for such in- subordination. 80 On June 16, 2011, Billy Little was terminated for refusing Thompson’s order to work in the warehouse and threatening to punch him in the face. Despite Little’s threat to assault Thomp- son, Little returned to work.81 On June 15, 2010, Al Hamilton was terminated for refusing a supervisor’s order to take a Department of Transportation- mandated (DOT) drug and alcohol test.82 Legal Analysis I. CONFIDENTIALITY PROVISION The General Counsel alleges that the Company’s condition- ing Saxton’s reinstatement on his signing of a confidentiality agreement restrained Saxton’s Section 7 rights. The Company argues that Section 7 rights can be waived, and that the provi- sion was mutually agreed upon, narrowly tailored and, thus, lawful. Employees have a well-established right to discuss disci- pline; therefore, a confidentiality rule, even when individual- ized, is valid only when the employer’s substantial and legiti- mate business justification outweighs any attending infringe- ment upon the employee’s rights. See Inova Health System, 360 NLRB 1223, 1231 fn. 16 (2014). After Saxton informed the Union that he had been presented with a last-chance agreement, the Union contacted the Compa- ny, who then proposed to convert Saxton’s discipline to a sus- pension for time served if he signed a confidentiality provision. The Union agreed to consider such a provision. The Company then submitted the agreement quickly and directly to Saxon, however, without the Union’s knowledge. Saxton signed the document and returned to work. The Company offered no business justification for condition- ing reinstatement on the confidentiality agreement and it is hard to fathom one. Whether the Company was seeking to keep con- fidential information relating to how it disciplines employees for causing property damages or refusing to sign a last-chance agreement, it is unclear as to what the agreement accomplished. Saxon caused significant damage to a Company vehicle, was inapplicable in our case, that there was insufficient evidence to support a finding of disqualifying misconduct. (GC Exh. 53.) 80 Brown confirmed the nature of Harley’s repeated insubordination. (R. Exh. 10 at 1; Tr. 808–809.) 81 Id. at 2. 82 Id. at 3. suspended for 4 days and out of work as a result, and subse- quently returned to work. As such, to the extent that the agree- ment sought to preclude Saxton, a steward, from discussing his discipline with coworkers, it infringed on his Section 7 rights and, thus, was facially unlawful. See Philips Electronics North America Corp., 361 NLRB 189, 191 (2014) (employees have a Section 7 right to share their disciplinary information with coworkers and any rule prohibiting such communication vio- lates Section 8(a)(1) of the Act). The Company’s additional argument that Saxton waived his rights by signing the confidentiality provision also fails.83 In support of this position, the Company cites well-established law which holds that a union may waive certain rights. See, e.g., 14 Penn Plaza v. Pyett, 556 U.S. 247 (2009); Mastro Plastics v. NLRB, 350 U.S. 270 (1956); Coca Cola Bottling Co. of L.A., 243 NLRB 501 (1979). However, the fact that a union may consent to the waiver of Section 7 rights through the collective- bargaining process does not entail that an individual employee may do the same. On the contrary: individual employee- employer agreements cannot waive employees’ Section 7 rights. See Murphy Oil, 361 NLRB 774, 774 (2014). Under the circumstances, the Company bypassed the Union as an unlaw- ful means by which to achieve a waiver for its unlawful imposi- tion of a facially invalid agreement precluding an employee from exercising his Section 7 rights in violation of Section 8(a)(1) of the Act. II. DISCIPLINE ATTRIBUTABLE TO SAXTON’S PARTICIPATION IN THE BOARD PROCESSES The General Counsel alleges that the Company initially dis- criminated against Saxton by disciplining him because of his participation in Board processes. The Company denies the alle- gations, refers to Saxton’s long history with the Company as a driver and union steward, and insists Saxton misled Thompson and engaged in misconduct warranting disciplinary action. Discipline allegedly precipitated by participation in Board processes is analyzed under the framework established in Wright Line, 251 NLRB 1080 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). See Taylor & Gaskin, 277 NLRB 563, 563 fn. 2 (1985) (noting application of Wright Line framework to 8(a)(4) analy- sis). That framework provides that the General Counsel has the initial burden to show that protected conduct was a motivating factor in the employee’s decision. This burden is met by demonstrating protected activity, the employer’s knowledge of such activity, and evidence of animus. Hawaiian Dredging Construction Co., 362 NLRB 81, 81 (2015). Establishment that protected conduct was a motivating factor in the employer’s decision does not require an additional showing of particular- ized motivating animus towards the employee’s own protected activity or to further demonstrate some additional, undefined 83 The General Counsel alleges that the Company did not plead in its answer that Saxton waived his Section 7 rights when he signed the confidentiality agreement. (GC Exh. 1(Y) at 2.) However, the Compa- ny’s second affirmative defense does include a general waiver defense. Although not specifically mentioning the confidentiality agreement, the General Counsel was well aware of the Company’s argument relating to Saxton’s waiver and the matter was litigated. (Tr. 255.) 1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD “nexus” between the employee’s protected activity and the adverse action. Libertyville Toyota, 360 NLRB 1298, 1302 fn. 10 (2014). When the General Counsel has met this standard, the burden then shifts to the employer to demonstrate that it would have taken the same action even in the absence of the employ- ees’ activity. Id. The General Counsel alleges that the Company discriminated against Saxton for his participation in Board processes both by terminating him on July 3 and subsequently converting it to a suspension on July 23. The Company denies any animus and asserts that it reasonably responded to Saxton’s evasive behav- ior. In addition, the General Counsel alleges that the Company discriminated against Saxton for his participation in Board processes by discharging him on September 29 and October 2. The Company denies that Saxton was terminated on September 29 and argues that the October 2 termination resulted from insubordination. Following Saxton’s grievance on December 27, the Union filed charges and amended charges with Region 5 of the NLRB. The Region, in turn, notified the Company of the initial and amended charges on January 27 and March 31, respectively. On April 25, the Region issued a complaint with notice of hearing for July 8. On July 1, Saxton left a message, which was con- veyed to Thompson, that he was not coming into work because he had “to get a license.” On July 2, Thompson pulled Saxton into a meeting and handed him a written warning for calling out on July 1 without sufficient leave time. The meeting included a heated discussion questioning the validity of Saxton’s license, culminating in Saxton providing documentary proof. On July 3, Thompson handed Saxton a letter terminating his employment. After failing, for 3 weeks to conduct a meaningful investiga- tion, Thompson reinstated Saxton on July 23, stating, “We have decided . . . to treat his time off from work as an unpaid suspen- sion, and a major offense, for dishonesty.” On July 24, follow- ing his reinstatement, Saxton grieved his suspension. The aforementioned disciplinary sequence of events resulted in charges that were included in the consolidated complaint, compliance specification, and notice of hearing for October 6 served on the Company by Region 5 on September 10. A few weeks after receiving that complaint, and 1 week before the hearing, on September 29, Thompson targeted Saxton with an overtime task that Saxton refused based on the CBA and which led to his termination on October 2. The fact that Saxton was told to return to work on September 30 after Settles intervened with Thompson is of no consequence since Thompson never retracted his statement to Saxton to clock out and not return. It was a temporary reprieve while Saxton prepared a termination letter. The record establishes that the Company was well aware of Saxton’s grievances, the accompanying complaints and notices of hearing. In at least two instances, the Company disciplined Saxton less than a week prior to a scheduled hearing: first, Sax- ton was disciplined on July 3 prior to a hearing scheduled for July 8; second, Saxton was disciplined on September 29 prior to a hearing scheduled for October 6. This suspicious timeline of events raises a strong inference that the Company exhibited discriminatory animus toward Saxton’s participation in Board processes. See Success Village Apartments, 348 NLRB 579, 579 fn. 5 (2006). Pretext evidencing animus is initially demonstrated by Thompson’s decision to seize upon secondhand information to initiate an investigation of Saxton’s license and then continuing to favor such secondhand information even in the face of clear documentary evidence to the contrary. See Clinton Food 4 Less, 288 NLRB 597 (1988). This failure to evenhandedly in- vestigate the charges against Saxton is further demonstrated by the Company’s failure to adduce evidence of past discipline for similar allegations. See Golden State Foods Corp., 340 NLRB 382, 385 (2003). Second, the Company’s shifting reasons for disciplining Sax- ton, by first accusing him of driving a Company vehicle on an expired license and then accusing him of dishonesty, strongly suggests that the July 23 suspension was a recalibration based upon pretext. See Naomi Knitting Plant, 328 NLRB 1279 (1999). Third, the grounds advanced by Thompson for terminating Saxton on September 29 and October 2 were contrived. Thompson knew or should have known on September 29 that there were approximately 7 junior drivers available at or around the time that he and Brown directed Saxton, the senior driver and on overtime, to take a truck for repairs. Thompson sudden- ly made this decision after the truck had already been parked on the lot for nearly a week. He ignored the applicable CBA rule as Saxton tried to show it to him and, instead, engaged Saxton in a shouting match which included profanity from Saxton dur- ing the argument, as well as a short time later when he yelled into the warehouse. The other basis for discharging Saxton— refusing to meet with Thompson on October 2 as directed by Brown—was also baseless. Saxton initially insulted Brown with the “Mr. Remus” comment and refused to meet with Thompson in the absence of union representation. However, a short time later, Drayton went looking for Thompson and Sax- ton called Brown. However, Thompson decided at that point to lay low, avoid further communication with Saxton and Dray- ton, and begin a paper trail of the earlier instance of insubordi- nation by Saxton. Since the General Counsel met his burden of establishing that Saxton’s termination and suspensions were directly moti- vated and caused by his participation in Board processes, the burden shifted to the Company to demonstrate that Saxton would have been terminated in the absence of such conduct. However, there was no such showing. Prior to Saxton’s termi- nation on October 2, the Company disciplined three employees for insubordination during the previous 4 years. One employee, after repeated instances of insubordination, received a warning. Another employee was initially terminated for refusing work and threatening to assault Thompson, but was reinstated. The third employee was terminated for refusing a State-mandated drug and alcohol test. None of these instances come close to a contractually justified refusal to work overtime or meet with a supervisor without a union represent present. Considering the suspicious timing, the conclusory investiga- tion, the lack of previous similarly situated discipline, and the shifting justifications provided, the evidence demonstrates that S. FREEDMAN & SONS, INC. 1221 the Company discriminated against Saxton for participating in Board processes in violation of 8(a)(4) and (1). II. DISCIPLINE RESULTING FROM SAXTON’S PROTECTED CONCERTED ACTIVITIES The complaint includes overlapping charges alleging that the Company also discriminated against Saxton for engaging in protected concerted activity by discharging him on September 29 and October 2. The specific activity alleged is his refusal to take an overtime assignment based on his seniority rights under the CBA. Employees have the right to engage in concerted activities for the purpose of mutual aid or protection. See Eastex v. NLRB, 437 U.S. 556, 563 (1978) (quoting Section 7, 29 U.S.C. § 157). The concepts of concerted activity and mutual aid or protection are analytically distinct. See Summit Regional Medi- cal Center, 357 NLRB 1614, 1616 (2011). Concertedness refers to the manner of the act, while mutual aid or protection refers to its goal. See Fresh & Easy Neighborhood Market, 361 NLRB 151, 153 (2014). An activity is concerted when conducted “with or on the authority of other employees and not solely by and on behalf of the employee himself.” Myers Industries, 268 NLRB 493, 497 (1984) (Myers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985). An activity is for mutual aid or protection when it seeks to “improve terms and conditions of employment or oth- erwise improve [employees'] lot as employees.” St. Rose Do- minican Hospitals, 360 NLRB 1130, 1133 (2014) (quoting Eastex, 437 U.S. at 565). Analysis of whether activity is con- certed for mutual aid or protection is objective. See Fresh & Easy Neighborhood Market, 361 NLRB 151, at 154. An individual activity is conducted with or on the authority of other employees when seeking to initiate or prepare for group action, or when bringing truly group complaints to the attention of management. See Myers Industries, 280 NLRB 882, 887 (1986) (Myers II), enfd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). An individual employee’s invocation of a collective-bargaining agreement in support of a reasonable and honest refusal to per- form a requested task is concerted activity. See NLRB v. City Disposal Systems, 465 U.S. 822, 837 (1984). On September 29, Brown asked Saxton to take a truck for window repairs. Saxton told Brown he was in overtime and insisted Brown assign the task to a junior driver. Brown left the transportation office, walked up to Saxton and continued the conversation next to the transportation window. Saxton insisted he had the contractual right to refuse because he was the senior driver and on overtime. He took out the contract and urged Brown to read it. Notwithstanding any debate over the accuracy of his interpretation, Saxton’s invocation of the contract demonstrated a reasonable and honest refusal to perform the requested task and was thus a concerted activity. See White Electrical Construction, 345 NLRB 1095, 1095 (2005); Tillford Contractors, 317 NLRB 68, 68–69 (1995). As Brown and Saxton argued about the assignment, their voices got progressively louder. Thompson and Smith joined the argument and the three supervisors surrounded Saxton. Saxton reiterated his interpretation of the contract, lacing his refusal to do the task with profanity. In the end, Thompson told Saxton to punch out and not return the next day. Discharge for conduct that is part of the res gestae of pro- tected concerted activities is unlawful unless such conduct is sufficiently egregious to remove it from the protection of the Act. See Aluminum Co. of America, 338 NLRB 20 (2002). Activity is not protected when “so violent or of such serious character as to render the employee unfit for further service.” St Margaret Mercy Healthcare Centers, 350 NLRB 203, 204–205 (quoting NLRB v. Illinois Tool Works, 153 F.2d 811, 815 (7th Cir. 1946)). Analysis of the character of conduct examines: (1) the place of the discussion; (2) the subject matter of the discus- sion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice. Atlantic Steel Co., 245 NLRB 814, 816 (1979). With respect to the place of discussion, the incident took place both inside and outside the transportation office and with- in hearing distance of other employees. The discussion there- fore was not private, a factor which counsels against protection; however, this factor carries less weight given that the Company selected the setting of the confrontation. See Brunswick Food & Drug, 284 NLRB 663 (1987). The subject matter of the discussion entailed Saxton’s inter- pretation of and reliance upon a contractual right. Discharge for activity which is itself concerted is in and of itself unlawful to the extent such activity has not lost its protected status. See Atlantic Scaffolding Co., 356 NLRB 835, 839 (2011). As to the nature of Saxton’s outburst, he yelled and cursed at least several times during his shouting match with Thompson. Outbursts lose protection when they “exceed the bounds of lawful conduct in a moment of animal exuberance or in a man- ner not motivated by improper motives and those flagrant cases in which the misconduct is so violent or of such a character as to render the employee unfit for further service.” Prescott In- dustrial Products Co., 205 NLRB 51, 51–52 (1973). Thus, impulsive outbursts carry more protection than those which are planned. See Kiewit Power Constructors Co., 355 NLRB 708, 711 (2010). In this regard, profanity is typically evaluated not for its content, but rather for its quantity. See Daimler Chrysler Corp., 344 NLRB 1324, 1329–1330 (2005). Moreover, raising one’s voice does not render concerted activity unprotected. See Goya Foods, Inc., 356 NLRB 476, 481 (2011). Under the cir- cumstances, with Saxton and Thompson both yelling in the midst of a warehouse populated by a relatively small number of employees towards the end of the workday, I do not find that Saxton’s inclusion of profanity raised his yelling to a level sufficient enough to render his concerted activity unprotected. As to whether the outburst was provoked, Saxton responded to a directive which he believed contravened his interpretation of the contract. However, there is no allegation that Thomp- son’s directive was, in and of itself, unlawful. Thus, this factor counsels against protection. See Tampa Tribune, 351 NLRB 1324, 1325 (2007). On the other hand, the fact that Saxton’s outburst was elevated in response to a display of overt hostility, as he was surrounded by three supervisors, counsels against placing too much emphasis upon this factor. See Felix Indus- tries, 339 NLRB 195, 195–196 (2003). 1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Although Thompson’s directive was not unlawful, the loca- tion of the incident was controlled by the Company and the subject matter went directly to the terms and conditions of em- ployment. Under the circumstances, the impulsiveness, profane nature and volume of Saxton’s discourse did not cause him to lose the protection of the Act and his discipline by the Compa- ny for engaging in protected concerted activity also violated 8(a)(3) and (1). CONCLUSIONS OF LAW 1. The Respondent, S. Freedman & Sons, Inc. is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Drivers, Chauffeurs and Helpers Local Union No. 639, a/w International Brotherhood of Teamsters, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Company violated Section 8(a)(1) of the Act by con- ditioning Richard Saxton’s reinstatement on a waiver of his Section 7 rights to discuss discipline, grievances and settle- ments with coworkers on November 25, 2013. 4. The Company violated Section 8(a)(3) and (1) of the Act by terminating Saxton on September 29 and October 2, 2014 for engaging in protected concerted activities. 5. The Company violated Section 8(4) and (1) of the Act by terminating Saxton on July 3, 2014, suspending Saxton on July 23, 2014, and terminating Saxton on September 29 and October 2, 2014, for filing or participating in charges and proceedings with the National Labor Relations Board. REMEDY Having found that the Company has engaged in certain un- fair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The Company, having discriminatorily discharged, and sus- pended Richard Saxton, must offer him reinstatement and make him whole for any loss of earnings and other benefits. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as pre- scribed in Kentucky River Medical Center, 356 NLRB 6 (2010). The Company shall file a report with the Social Security Ad- ministration allocating backpay to the appropriate calendar quarters. The Company shall also compensate the discrimi- natee(s) for the adverse tax consequences, if any, of receiving one or more lump-sum backpay awards covering periods longer than 1 year. Tortillas Dan Chavas, 361 NLRB 101 (2014). [Recommended Order omitted from publication.]