Purple Communications, Inc. and Its Successor and Joint Employer CSDVRS, LLC d/b/a ZVRS

370 NLRB No. 26 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Purple Communications, Inc. and its Successor and Joint Employer CSDVRS, LLC d/b/a ZVRS and Pacific Media Workers Guild, Local 39521, The Newspaper Guild, Communications Workers of America, AFL–CIO. Cases 21–CA–149635, 21– CA–182016, 21–CA–185343, 27–CA–185377, 27– CA–186448, 27–CA–192084, 27–CA–197062, 28– CA–179794, 28–CA–186509, 21–CA–187642, 28– CA–192041, 28–CA–197009, and 32–CA–185337 September 28, 2020 DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS KAPLAN AND MCFERRAN On August 3, 2018, Administrative Law Judge Mara- Louise Anzalone issued the attached decision. Purple 1 In addition, as further discussed below, on February 28, 2020, the Board issued a corrected notice to show cause why the complaint allega- tion in this case involving the maintenance of the Respondent’s elec- tronic communications policy should not be severed and remanded to the administrative law judge for further proceedings consistent with the Board’s decision in Caesars Entertainment d/b/a Rio All-Suites Hotel & Casino, 368 NLRB No. 143 (2019). The General Counsel, Respondent, and Charging Party each filed a response to the notice. 2 Member Emanuel took no part in the consideration of this case. Therefore, the Charging Party’s motion to recuse him is denied as moot. 3 The Respondent and Charging Party have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance 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. On June 13, 2019, the Charging Party filed letters requesting that the Board take administrative notice of the Board’s decisions in Cayuga Medical Center at Ithaca, Inc., 367 NLRB No. 21 (2018), Bodega Latina Corporation d/b/a El Super, 367 NLRB No. 34 (2018), Chicago Teach- ers Union, 367 NLRB No. 50 (2018), Quicken Loans, Inc., 367 NLRB No. 112 (2019), and Quality Dining, Inc., 367 NLRB No. 143 (2019). The Board may take administrative notice of its own proceedings, Farmer Bros. Co., 303 NLRB 638, 638 fn. 1 (1991), enfd. mem. 988 F.2d 120 (9th Cir. 1993), and accordingly we grant the Charging Party’s requests. However, we note that many of these decisions were issued before the Charging Party filed its cross-exceptions in this case. In any event, consideration of those decisions does not affect our decision here. See Independent Stave Co., 278 NLRB 593, 593 fn. 1 (1986). The Charging Party also filed a letter requesting that the Board take administrative notice of the decision of the California Public Employ- ment Relations Board in Moberg v. Napa Valley Community College District, 42 Pub. Employee Rep. for California ¶ 154 (2018), which also issued before the Charging Party briefed the instant case to the Board. We find it unnecessary to do so because the decision would not affect our disposition of this case. Communications, Inc. and CSDVRS, LLC d/b/a ZVRS (collectively, the Respondent) filed exceptions and a sup- porting brief, the General Counsel and Charging Party filed answering briefs, and the Respondent filed reply briefs. In addition, the General Counsel filed cross-excep- tions with a supporting brief, the Respondent and Charg- ing Party filed answering briefs, and the General Counsel filed a reply to the Respondent’s answering brief. The Charging Party also filed cross-exceptions and a support- ing brief, and the Respondent filed an answering brief.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.2 The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,3 and conclusions4 only to the extent consistent with this Decision and Order.5 I. INTRODUCTION The Respondent provides sign language interpreting services for the deaf. Its services include Video Relay 4 There are no exceptions to the judge’s findings and conclusions with respect to any of the numerous violations of Sec. 8(a)(5), (3), and (1) that are not specifically mentioned in this decision. Because a charging party cannot enlarge upon or change the General Counsel’s theory of the case, we reject the Charging Party’s exceptions that raise arguments outside the scope of the complaint. See Caesars Entertainment, above, slip op. at 3 fn. 11; Kimtruss Corp., 305 NLRB 710, 711 (1991). We affirm on procedural grounds the judge’s finding that the issue of whether the Respondent unilaterally modified the parties’ collective-bar- gaining agreement in violation of Sec. 8(a)(5) by changing its scheduling practices should be deferred to the parties’ grievance arbitration process. The Charging Party filed only a bare, unsupported exception to this find- ing, and we will exercise our discretion under Sec. 102.46(a)(1)(ii) of the Board’s Rules and Regulations to disregard it on that basis. See Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006). Finally, the judge neglected to include in her Conclusions of Law that the Respondent violated Sec. 8(a)(5) and (1) by failing to provide infor- mation in response to a July 14, 2016 information request and that, as stipulated by the parties, CSDVRS, LLC d/b/a ZVRS is a successor to Purple Communications, Inc. The judge’s inadvertent omissions do not affect the disposition of this case. 5 We shall modify the judge’s remedy and recommended Order to conform to the violations found, to the Board’s standard remedial lan- guage, and in accordance with our decisions in Danbury Ambulance Ser- vice, Inc., 369 NLRB No. 68 (2020), and AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). The judge included a narrow cease-and- desist provision in her recommended Order, but the notices attached to her decision included broad cease-and-desist language. We shall substi- tute new notices to conform to the Order as modified and to correct this inadvertent error. The Respondent excepts to a recommended remedy, and the General Counsel and Charging Party request certain extraordinary remedies, in- cluding a reading of the notice to employees. The remedies recom- mended by the judge—including the posting of an explanation of em- ployee rights under the Act—are consistent with current Board law, and we find them sufficient to address the violations found. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Service (VRS) interpreting, which involves video inter- preters (VIs) translating between deaf and hearing persons via video conference throughout approximately 19 call centers. In 2012, Pacific Media Workers Guild, Local 39521 (the Union) was certified to represent the VIs at four of those call centers: San Diego, Oakland, Denver, and Tempe. Over the next two years, the Respondent and the Union bargained a master collective-bargaining agree- ment covering the unit employees at all four locations. The parties executed this contract in May 2015. The General Counsel alleged, and the judge found, that the Respondent committed numerous violations of Section 8(a)(5), (3), and (1) of the National Labor Relations Act (the Act or NLRA) at the four unionized call centers, start- ing soon after the collective-bargaining agreement was ex- ecuted in 2015 and continuing through 2017. For the rea- sons that follow, we affirm in part and reverse in part. Finally, there are no exceptions to the judge’s finding that the Re- spondent unlawfully applied its electronic communications policy to re- strict employees’ Sec. 7 rights. Under extant precedent, when an em- ployer violates Sec. 8(a)(1) by applying a rule to restrict the exercise of Sec. 7 rights, the Board orders the employer to rescind or revise the rule—typically in accordance with Guardsmark, LLC, 344 NLRB 809, 812 & fn. 8 (2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007), which involved facially unlawful rules—even though the rule is lawful on its face. See, e.g., Cayuga Medical Center at Ithaca, Inc., 365 NLRB No. 170, slip op. at 2 (2017) (omitting Guardsmark remedy); Hitachi Capital America Corp., 361 NLRB 123, 125–126 (2014). For institu- tional reasons and in the absence of exceptions to the underlying viola- tion, Chairman Ring and Member Kaplan apply this precedent here. See Desert Cab, Inc., 367 NLRB No. 87, slip op. at 1 fn. 1 (2019). Member McFerran agrees with established Board precedent, cited above, holding that when an employer violates Sec. 8(a)(1) by applying a rule to restrict the exercise of Sec. 7 rights the appropriate remedy is to order rescission or revision of the rule. These remedial measures are necessary because once an employer applies a rule to restrict protected activity, it has “provided employees with an authoritative indication of the scope of its prohibition” and informed employees that going forward they should construe the rule in that manner. Cf. Triple Play Sports Bar and Grille, 361 NLRB 308, 314 (2014), enfd. 629 Fed.Appx 33 (2d Cir. 2015); see also Albertson’s, Inc., 351 NLRB 254, 259 (2007) (observing that a “context of unlawful application” would inform employees under- standing of a rule). She agrees, however, that in implementing these re- medial measures it is generally appropriate to afford an employer the op- tions outlined in Guardsmark, above. 6 We agree with the judge that the Respondent had an obligation to give the Union an opportunity to bargain over the elimination of the wage differential for community interpreting work because the payment of the differential was a regular and longstanding practice. See Sunoco, Inc., 349 NLRB 240, 244 (2007). We reject the Respondent’s argument that community interpreting work performed by VIs was not bargaining-unit work. The unit descriptions in the Board’s certification of representative and the parties’ collective-bargaining agreement define the unit by job title, not job duties; the units consist of “all full-time and flex staff Video II. DISCUSSION A. The 8(a)(5) and (1) Violations Found by the Judge The Respondent excepts only to a few of the violations found by the judge. With respect to those findings the Re- spondent has contested, we affirm the judge’s findings, for the reasons she stated and those set forth below, that the Respondent violated Section 8(a)(5) of the Act by unilat- erally ceasing to pay a wage differential for community interpreting work6 and by modifying the parties’ collec- tive-bargaining agreement when the Respondent stopped deducting union dues from wages earned for community interpreting work. We likewise affirm, with further expla- nation below, the judge’s findings that the Respondent vi- olated Section 8(a)(1) by denying VI Jody Mayer her Weingarten7 rights when Denver Center Manager Dora Veith told union steward Mah-rya Proper to stop interrupt- ing during Veith’s investigatory interview of Mayer,8 and that it violated Section 8(a)(1) and (5) by promulgating several rules in an email Veith sent to Proper listing ex- pectations for the conduct of union stewards during inves- tigatory interviews.9 Interpreters” at each of the four organized call centers; and it is uncon- tested that VIs performed—and that the parties were aware that VIs per- formed—community interpreting work at all material times. 7 NLRB v. Weingarten, 420 U.S. 251 (1975). 8 Steward Proper had only twice made clarifying interjections before Veith instructed her to stop interrupting, and the interruptions had not reached the point of interfering with the Respondent’s right to get Mayer’s version of events. Proper’s protected assistance, and the Re- spondent’s instruction to stop interrupting in response, are clearly distin- guishable from the circumstances presented in the cases cited by the Re- spondent: Howard Industries, 362 NLRB 303 (2015) (steward showed employee notes from pre-interview meeting, which employee read from during investigatory interview), and Fry’s Food Stores, 361 NLRB 1216 (2014) (employer instructed Weingarten representative that she was there only to “observe and listen”). In affirming the judge here, Chair- man Ring and Member Kaplan therefore need not express any view whether, as the Respondent suggests, those cases were incorrectly de- cided. 9 Because we find that the rules set forth in Veith’s email to Proper violated Sec. 8(a)(1), we find it unnecessary to pass on whether they also violated Sec. 8(a)(3). In affirming the judge’s Sec. 8(a)(1) findings, we rely solely on the judge’s finding that the rules were promulgated in re- sponse to Sec. 7 activity. Regarding the Respondent’s exceptions to the judge’s Sec. 8(a)(5) findings, there is no basis in the language of the par- ties’ collective-bargaining agreement to find that the Respondent is priv- ileged to make unilateral changes in rules regarding the conduct of union representatives at Weingarten meetings. We also reject the Respondent’s argument that the email did not promulgate generally applicable rules, with one exception. Veith’s email to Proper included the statement: “I support you to choose an approach that is non-combative. Standing and attempting to use intimidating body language is unprofessional and dis- respectful. Sarcastic and snide comments, overt or under your breath, is unprofessional and disrespectful.” Because this comment was person- ally directed to Proper and was not generally applicable to all union stew- ards, it was not a rule and did not violate either Sec. 8(a)(1) or (5). And because the comment did not constitute discrimination to encourage or PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 3 B. The Respondent’s Maintenance of its Electronic Communications Policy Next, we consider the complaint allegation involving the Respondent’s maintenance of its Internet, Intranet, Voicemail and Electronic Communications Policy (ECP). Specifically at issue are provisions in the ECP stating that “[e]mployees are strictly prohibited from using . . . email systems . . . in connection with any of the following activ- ities: . . . 2. Engaging in activities on behalf of organiza- tions or persons with no professional or business affilia- tion with the Company,” and “9. Distributing or storing . . . solicitations . . . or other non-business material or activ- ities.” Applying the standard set forth by the Board in Purple Communications, Inc., 361 NLRB 1050 (2014) (Purple I), the judge found that the Respondent’s maintenance of the ECP was unlawful. Subsequent to the judge’s decision, the Board overruled Purple I in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019), and announced a new standard that applies retro- actively to all pending cases in which it is alleged that, as here, an employer violated the Act by maintaining rules restricting the use of its information-technology (IT) re- sources for nonwork purposes. The Caesars Entertain- ment standard states, in relevant part, that “an employer does not violate the Act by restricting the nonbusiness use of its IT resources absent proof that employees would oth- erwise be deprived of any reasonable means of communi- cating with each other, or proof of discrimination.” Id., slip op. at 8. Under this limited exception, employees are permitted to access their employer’s IT resources for non- business use, even absent discrimination, where the em- ployees would otherwise be deprived of any reasonable means of communicating with each other. discourage membership in any labor organization, it also did not violate Sec. 8(a)(3). Member McFerran would affirm the 8(a)(1) violations found by the judge because the emailed statements were both unlawfully promulgated rules and overbroad bans of active participation by Weingarten repre- sentatives or, regarding the prohibition of steward-employee meetings from the VRS floor, an overbroad ban on protected discussions in the workplace. In addition, she would reverse the judge and find that Veith’s statement that she “be treated in a respectful manner and to be assured that you will work within the limitations of your assigned role” was not a personal directive but, in the context of an email listing expectations applicable to all Weingarten representatives, a statement reasonably in- terpreted as another rule of general applicability. Accordingly, she would also find the rule to be both unlawfully promulgated and an over- broad ban on active participation by a Weingarten representative. Mem- ber McFerran would also reverse the judge and find Veith’s statement that a Weingarten meeting “is an inappropriate place to debate policy” to violate Sec. 8(a)(1) as an overbroad rule limiting the participation of Weingarten representatives, who may need to bring up “policy” while assisting employees during investigatory interviews. Finally, Member McFerran agrees with her colleagues that the Respondent implemented Because the parties did not previously have an oppor- tunity to address whether this exception to the rule of Cae- sars Entertainment applies to the facts of this case, the Board issued a notice to show cause why this allegation should not be remanded to the judge for further proceed- ings in light of Caesars Entertainment, including, if nec- essary, the filing of statements, reopening the record, and issuance of a supplemental decision.10 In his response, the General Counsel states that he no longer intends to pursue the allegation that the mere maintenance of the ECP was unlawful, and he moves the Board to sever and remand that allegation to the Regional Director for further action consistent with Caesars Enter- tainment. The Respondent contends that the allegation should be dismissed outright or remanded to the Regional Director for dismissal. The Charging Party contends, among other things, that the Board should find a violation based on the existing record, and it reiterates arguments previously made that the Respondent failed to prove a spe- cific business justification for the ECP. Based on the parties’ responses, we find that further proceedings before the judge would serve no purpose.11 We are prepared to rule on the merits of the allegation, and doing so will obviate the need for further action by the Re- gional Director, which the remand sought by the General Counsel would require. Because there is no indication in the record that the Respondent’s employees do not have access to other reasonable means of communication, and no party contends in its response to the show-cause notice that the Respondent’s IT systems furnish the only reason- able means for employees to communicate with one an- other, we find that the Respondent did not violate Section 8(a)(1) by maintaining the ECP. We reverse the judge and dismiss the relevant complaint allegation.12 See Cellco the above rules unilaterally in violation of Sec. 8(a)(5) and that it is un- necessary to pass on whether they also violate Sec. 8(a)(3). 10 The original notice, issued on February 24, 2020, inadvertently failed to note that Member Emanuel did not participate in the decision to issue the notice, but a corrected notice issued on February 28, with a footnote stating his nonparticipation. Accordingly, we deny the Charg- ing Party’s motion to quash the notice to show cause as moot. 11 The Charging Party’s argument regarding whether the Respondent has legitimate business justifications for the rules restricting use of its IT resources is misplaced. In Caesars Entertainment, the Board balanced employees’ NLRA rights and employers’ interests to establish generally that employers may lawfully restrict employees’ nonbusiness use of their IT systems, unless the restriction is discriminatory or employees have no other reasonable means of communicating with each other. The Board does not conduct this balance anew in each case. 12 Dismissal of this complaint allegation does not impact the judge’s finding that the Respondent unlawfully applied the ECP to restrict em- ployees’ Sec. 7 rights, a finding to which the Respondent did not except. Member McFerran acknowledges that Caesars Entertainment, above, is currently governing law, but adheres to and reiterates her dissent in DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Partnership d/b/a Verizon Wireless, 369 NLRB No. 130 (2020). C. Allegations Dismissed by the Judge In addition to the violations discussed above, the judge also recommended dismissal of several complaint allega- tions. With respect to those that are excepted to by the General Counsel and Charging Party, we affirm all of the judge’s findings for the reasons she stated, except for one, which we discuss below in footnote 16. Specifically, we agree that the Respondent did not violate Section 8(a)(5) of the Act by failing to respond to a July 22, 2016 request for documents showing training for investigators of caller complaints13 or to a July 6, 2016 request for verification that its computer system was free of technical abnormali- ties. We also agree that the Respondent did not violate Section 8(a)(3) or (5) of the Act when Human Resources Business Partner Sarah Haraz responded to a request for that case. Contrary to her colleagues, she would apply Purple I and af- firm the judge’s finding that the ECP is unlawful. 13 This request was made solely for the purpose of bargaining regard- ing disciplinary policies tied to customer complaints, and we agree with the judge that the Union contractually released the Respondent from any duty to bargain about this subject. See ADT, LLC d/b/a ADT Security Services, 369 NLRB No. 31, slip op. at 1 & fn. 2 (2020). To the extent the information was relevant to the processing of individual grievances over disciplines tied to customer complaints, the Union separately re- quested the information in connection with those grievances, the judge ordered the Respondent to provide it to the Union on that basis, and the Respondent did not relevantly except. 14 Unlike her colleagues, Member McFerran would reverse the judge and find that the Respondent engaged in unlawful surveillance on both occasions because its conduct exceeded mere observation of openly con- ducted union activities and thus had a tendency to intimidate employees from exercising their Sec. 7 rights. See F.W. Woolworth Co., 310 NLRB 1197, 1197 (1993). The Respondent’s overt acts of photographing union displays in call-center breakrooms, in likely view of employees, made it apparent that the Respondent was recording union activities and employ- ees would have reasonably concluded that their union activities would be similarly recorded. Further, a supervisor’s use of a video-calling appli- cation (FaceTime) on her phone to bring an offsite manager to the call- center floor to view employees’ displays of union support also goes be- yond mere observation, especially where, as here, the employees had no way of knowing whether the supervisor was recording them. 15 The handbook acknowledgment form states that employees agree with and understand the provisions of the handbook. The judge found that the handbook contains unlawful provisions regarding confidentiality but that the presence in the handbook of those provisions did not warrant a further finding that requiring employees to sign the acknowledgment form thereby independently violated the Act. No party has excepted to the judge’s determination that the confidentiality provisions were unlaw- ful. See fn. 4, supra. We agree with the judge that requiring employees to sign the routine acknowledgment form, which does not mention the provisions the judge found unlawful, does not meaningfully affect em- ployee Sec. 7 rights in the circumstances of this case. Heck’s, Inc., 293 NLRB 1111 (1989), cited by our dissenting colleague, is readily distin- guishable. There, the handbook contained a “Union Policy” provision stating that the employer did not want any of its employees to be repre- sented by a union and that “you will surely agree there is no need for a teaming reports for employees involved in grievances and did not violate Section 8(a)(3) when Denver Center Man- ager Veith told union steward Proper that bathroom breaks did not qualify as union time. We also agree that the Re- spondent did not violate Section 8(a)(1) of the Act by en- gaging in surveillance when supervisors took pictures of union displays in call center break rooms or when Denver Center Supervisor Kelly Leo used “FaceTime” on her phone to show Haraz union balloons in the call center,14 by disparaging the Union because the evidence failed to show that Tempe Center Manager Cheryl Jonagan told employees their discipline was due to the parties’ bargain- ing agreement, by requiring employees to sign a handbook acknowledgment form,15 by denying VI Karly Espinoza’s request for a Weingarten representative during a meeting that was not investigatory, and by requiring VI Nora Mas- chue to “attest” to the honesty of her answers during an investigatory interview.16 union or any other paid intermediary to stand between you and your com- pany.” Id. at 1119. The Board found the “Union Policy” provision law- ful, but ruled that a separate receipt provision, which relevantly stated “I agree to . . . observe and be bound by present and future company per- sonnel policies and rules outlined in this manual,” effectively converted the lawful “Union Policy” statement into an unlawful promise to refrain from protected Sec. 7 activities. Id. at 1120. That acknowledgment form did meaningfully affect employees’ Sec. 7 rights under those particular circumstances, but no facts of that character are present here. Member McFerran would find, contrary to the judge and her col- leagues, that the Respondent violated Sec. 8(a)(1) by requiring employ- ees to sign a handbook “Acknowledgement of Receipt” form expressly declaring each employee’s agreement “to abide by the provisions of this Handbook at all times during my employment.” The Board has found in this case that the Respondent’s handbook contained an unlawful confi- dentiality policy and, as stated, Member McFerran would find that the Respondent’s maintenance of the ECP in the handbook was unlawful as well. In those circumstances, she would find that the Respondent’s re- quirement that employees sign the “Acknowledgement of Receipt” form agreeing to abide by these unlawful provisions also violated the Act. See Heck’s, Inc., 293 NLRB 1111, 1120 (1989) (finding that the employer similarly violated Sec. 8(a)(1) by requiring employees to sign a hand- book receipt form declaring each employee’s agreement to abide and be bound by unlawful provisions contained in the handbook). 16 We find it unnecessary to pass on the judge’s dismissal of the alle- gation that the Respondent violated Sec. 8(a)(1) by creating the impres- sion of surveillance when San Diego Center Manager Tera Thrasher told VI Hannah Mattix that she knew two San Diego VIs had complained about the Union. Since there are no exceptions to the judge’s finding of an impression of surveillance violation based on another incident, the finding of an additional violation would be cumulative and would not affect the remedy. We do, however, reverse the judge’s dismissal of the allegation that the Respondent, by Thrasher, violated Sec. 8(a)(1) in a Facebook ex- change with Mattix. After Mattix asked “[h]ow’s the atmosphere there?” Thrasher responded: “[N]ot as much union here lol national labor rela- tions board is a good way to check out how to deunionize.” Although Mattix had previously expressed anti-union sentiments, there is no evi- dence that she had inquired about how to decertify the Union or that Thrasher’s response aided Mattix in the accomplishment of Mattix’s pre- determined objective to do so. Further, there are no exceptions to the PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 5 ORDER The National Labor Relations Board orders that the Re- spondent, Purple Communications, Inc., Rocklin, Califor- nia, and CSDVRS, LLC d/b/a ZVRS, Clearwater, Florida, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees that it would be futile for them to select union representation. (b) Promising benefits to employees in order to discour- age them from selecting union representation. (c) Labeling employee disciplinary notices “confiden- tial.” (d) Threatening to investigate employees based on the request for information by the Newspaper Guild, Commu- nications Workers of America, AFL-CIO (Union) regard- ing employee discipline. (e) Threatening employees with unspecified reprisals for engaging in union or other protected activities. (f) Coercively interrogating employees about their own or others’ union or other protected concerted activities. (g) Denying employees the presence or assistance of their union representative during a Weingarten interview, including by ordering the union representative to remain silent or refrain from interrupting. (h) Creating the impression that it is engaged in surveil- lance of its employees’ union or other protected concerted activities. (i) Soliciting employees to report on the union activities of their coworkers. (j) Encouraging, soliciting, or coercing employees to decertify the Union. (k) Denigrating the Union so as to threaten that contin- ued representation by the Union will be futile. (l) Directing employees to remove food, displays, or decorations from the workplace because they related to or were provided by the Union. (m) Removing food or flyers from employee break rooms because they related to or were provided by the Un- ion. (n) Unilaterally changing the terms and conditions of employment of its unit employees by changing the rate of pay for community interpreting work performed by unit employees. (o) Unilaterally changing the terms and conditions of employment of its unit employees by implementing new work rules. judge’s findings that Thrasher committed multiple unfair labor practices in two prior Facebook exchanges with Mattix. Particularly when viewed against this background of unlawful conduct, Thrasher’s unprompted reference to the Board as a “good way to check out how to deunionize” went beyond ministerial aid by introducing the idea of removing the Un- ion in response to a question that did not raise the topic. See Corrections (p) Failing to continue in effect all the terms and condi- tions of its collective-bargaining agreement without the Union’s consent by ceasing to deduct union dues from the earnings of unit employees attributable to the performance of community interpreting work. (q) Refusing to bargain collectively with the Union by failing and refusing to furnish it with requested infor- mation that is relevant and necessary to the Union’s per- formance of its functions as the collective-bargaining rep- resentative of the Respondent’s unit employees, or by un- reasonably delaying in furnishing the Union with such in- formation. (r) Disparately applying its Internet, Intranet, Voicemail and Electronic Communication Policy to prohibit non- business emails relating to unionization while permitting non-business emails that do not relate to unionization. (s) Disparately applying its non-solicitation policy to ban employees from placing union materials in employee break rooms. (t) Maintaining rules prohibiting the following conduct by employee-stewards serving as Weingarten representa- tives: (1) objecting to a question asked by management before the interviewed employee answers it; and (2) offering exculpatory evidence before management questioning is complete. (u) Promulgating and maintaining overly broad and/or discriminatory rules prohibiting the following employee conduct: (1) using break rooms for pro-union activities and/or placing union literature in break rooms (other than on designated union bulletin boards); (2) conducting union business on “work place prop- erty”; (3) engaging in union conduct, including placing union- provided food, displays or other items in break rooms, without prior authorization by management; (4) displaying balloons and other pro-union parapherna- lia in work areas; (5) bringing in “treats” or engaging in “other efforts” for coworkers; Corp. of America, 347 NLRB 632, 633 (2006) (finding unlawful assis- tance where employer distorted employee question about health benefits to provide information on how to decertify the union). We find that Thrasher thereby provided unlawful assistance in violation of Sec. 8(a)(1), as alleged. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 (6) soliciting in work areas other than by displaying per- sonal effects; (7) displaying small symbols of union loyalty except in designated areas; and (8) displaying larger symbols of union loyalty in any and all areas. (v) Promulgating and maintaining an overly broad and discriminatory rule prohibiting employee-stewards from placing union announcements on tables in the Tempe call center break room and requiring them to remove such ma- terials. (w) Maintaining an overly broad confidentiality policy that prevents employees from discussing performance ap- praisals, salary increases and other employment records. (x) Promulgating rules in response to Section 7 activity restricting the participation of union representatives in, or in relation to, Weingarten interviews, including the fol- lowing: (1) no interrupting during investigatory interviews; (2) no providing information to justify the interviewed employee’s conduct prior to the end of questioning by management representative(s); and (3) no meeting with the interviewed employee on the VRS floor. (y) 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) Rescind or revise the Internet, Intranet, Voicemail and Electronic Communication Policy and Employment Records Policy in the employee handbook. (b) Rescind or revise the non-solicitation policy in the employee handbook. (c) Rescind or revise the confidentiality policy provi- sions in the employee handbook that prohibit employees from discussing their performance appraisals, salary in- creases, disciplinary action reports, and other employment records. (d) Rescind or revise the rules prohibiting certain em- ployee conduct described above in paragraph 1(u). (e) Rescind or revise the rule prohibiting union an- nouncements in employee break rooms. (f) Rescind or revise the rules restricting the participa- tion of employee-stewards during Weingarten interviews described above in paragraphs 1(t) and 1(x). (g) Furnish employees with an insert for the current em- ployee handbook that (1) advises that the unlawful rules or provisions in paragraphs 2(a)-(c) have been rescinded, or (2) provides lawfully worded rules or provisions on ad- hesive backing that will cover the unlawful rules or provi- sions; or publish and distribute to employees revised em- ployee handbooks that (1) do not contain the unlawful rules or provisions, or (2) provide lawfully worded rules or provisions. (h) Furnish employees with a notice that either advises that the unlawful rules in paragraphs 2(d)-(f) have been rescinded or provides lawfully worded rules. (i) Distribute to supervisors and managers at all facili- ties revised Disciplinary Action Report forms that are not labeled “Confidential” and use those revised forms when issuing discipline to employees. (j) Rescind the changes in the terms and conditions of employment for unit employees that were unilaterally im- plemented in March, May, June, August, October, and November 2016. (k) Make employees affected by the foregoing unlawful changes whole for any loss of earnings and other benefits suffered as a result of these violations, with interest as set forth in the remedy section of the judge’s decision. (l) Compensate affected employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 28, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. (m) Rescind the May 2016 modifications to the collec- tive-bargaining agreement affecting withholding of union dues and continue in effect all the terms and conditions of employment contained in the collective-bargaining agree- ment covering employees in the unit described below, in- cluding the deduction of dues from the earnings of unit employees attributable to the performance of community interpreting work. (n) Reimburse the Union for all dues that were not de- ducted from wages earned for community interpreting work in the manner prescribed in the remedy section of the judge’s decision. (o) Before implementing any changes in wages, hours, or other terms and conditions of employment of unit em- ployees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of em- ployees in the following bargaining units: (1) All full-time and flex staff Video Interpreters (VIs) employed by the Employer at its facility located at 4542 Ruffner Street, Suite 270, San Diego, California, but ex- cluding all other employees, center assistants, confiden- tial employees, managers, office clerical employees and guards, professional employees and supervisors as de- fined by the National Labor Relations Act. PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 7 (2) All full-time and flex staff Video Interpreters (VIs) employed by Respondent at its Denver, Colorado facil- ity, but excluding all other employees, center assistants, confidential employees, managers, office clerical em- ployees and guards, professional employees and super- visors as defined by the National Labor Relations Act. (3) All full-time and flex staff Video Interpreters em- ployed by the Employer in Tempe, Arizona, but exclud- ing all other employees, center assistants, confidential employees, managers, office clerical employees and guards, professional employees and supervisors as de- fined by the National Labor Relations Act. (4) All full-time and flex staff Video Interpreters (VIs) employed by the Employer at its facility located in Oak- land, California, but excluding all other employees, cen- ter assistants, confidential employees, managers, office clerical employees and guards, professional employees and supervisors as defined by the National Labor Rela- tions Act. (p) Furnish to the Union in a timely manner the infor- mation requested by the Union on April 15, July 6, July 14, August 3, and November 9, 2016, except for the infor- mation regarding verification that the computer system was free of technical abnormalities. (q) Post at its facilities nationwide (except at the Den- ver, Colorado; Tempe, Arizona; San Diego, California; and Oakland, California facilities) copies of the attached notice marked “Appendix A,” and post at its Denver, Tempe, San Diego, and Oakland facilities copies of the attached notice marked “Appendix B” and the attached ex- planation of rights marked “Appendix C.”17 Copies of the notices and explanation of rights, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecu- tive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices and the expla- nation of rights 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. Rea- sonable steps shall be taken by the Respondent to ensure 17 If the facilities involved in these proceedings are open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facilities involved in these proceedings are closed due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices must be posted within 14 days after the facility reopens and a substantial complement of employees have re- turned to work, and the notices may not be posted until a substantial com- plement of employees have returned to work. Any delay in the physical that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of busi- ness, it shall duplicate and mail, at its own expense, a copy of the notice marked “Appendix A” to all former employ- ees employed by the Respondent since October 6, 2014 (except those formerly employed at its Denver, Tempe, San Diego, and Oakland facilities), and a copy of the no- tice marked “Appendix B” and of the explanation of rights marked “Appendix C” to all former employees employed by the Respondent at its Denver, Tempe, San Diego, and Oakland facilities at any time since that same date. If the Respondent has closed the Denver, Tempe, San Diego, or Oakland facility, it shall duplicate and mail, at its own ex- pense, a copy of the notice marked “Appendix B” and the explanation of rights marked “Appendix C” to all current employees and former employees employed by the Re- spondent at said closed facility at any time since October 6, 2014. If the Respondent has closed any other facility, it shall duplicate and mail, at its own expense, a copy of the notice marked “Appendix A” to all current and former employees employed by the Respondent at said closed fa- cility at any time since October 6, 2014. (r) Within 21 days after service by the Region, file with the Regional Director for Region 28 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. IT IS FURTHER ORDERED THAT the third consolidated complaint is dismissed insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C. September 28, 2020 ______________________________________ John F. Ring, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ Lauren McFerran Member (SEAL) NATIONAL LABOR RELATIONS BOARD posting of paper notices also applies to the electronic distribution of the notice if the Respondent customarily communicates with its employees by electronic means. If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated 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 ac- tivities. WE WILL NOT threaten you that it would be futile to se- lect union representation. WE WILL NOT promise you benefits in order to discour- age you from selecting union representation. WE WILL NOT label our Disciplinary Action Reports “Confidential.” WE WILL NOT maintain a work rule that prohibits you from discussing your performance appraisals, salary in- creases or other employment records. WE WILL NOT disparately enforce our Internet, Intranet, Voicemail and Electronic Communication Policy to pro- hibit non-business emails relating to union activities while permitting non-business emails that do not relate to union activities. WE WILL NOT disparately enforce our non-solicitation policy to prohibit employees from leaving materials re- lated to the Union in the break room while permitting em- ployees to leave other non-business materials unrelated the Union in the break room. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL rescind or revise the provisions in our em- ployee handbook that prohibit you from discussing your performance appraisals, salary increases, disciplinary ac- tion reports, or other employment records. WE WILL rescind or revise the Internet, Intranet, Voicemail and Electronic Communication Policy and Em- ployment Records Policy in the employee handbook. WE WILL rescind or revise our non-solicitation policy in the employee handbook. WE WILL furnish you with inserts for the current em- ployee handbook that advise that the unlawful provisions have been rescinded, or WE WILL publish and distribute revised employee handbooks that do not contain the un- lawful provisions. WE WILL distribute to supervisors and managers at all facilities revised Disciplinary Action Report forms that are not labeled “Confidential” and use those revised forms when issuing discipline. PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC D/B/A ZVRS The Board’s decision can be found at https://www.nlrb.gov/case/28-CA-179794 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. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated 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 ac- tivities. WE WILL NOT threaten you that it would be futile to se- lect union representation. WE WILL NOT promise you benefits in order to discour- age you from selecting union representation. WE WILL NOT label our Disciplinary Action Reports “Confidential.” PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 9 WE WILL NOT threaten you with negative consequences because of your union activities, the union activities of other employees, or the Union’s performance of its role as your collective-bargaining representative. WE WILL NOT threaten to investigate you based on a re- quest for information by the Newspaper Guild, Communi- cations Workers of America, AFL–CIO (Union) regarding employee discipline. WE WILL NOTthreaten you with unspecified reprisals for engaging in union or other protected activities. WE WILL NOT coercively question you about your own or others’ union or other protected concerted activities. WE WILL NOT deny your request to be represented by a union representative during an interview you reasonably believe may result in discipline or improperly restrict your union representative’s ability to provide assistance and counsel to you. WE WILL NOT create the impression that we are engaged in surveillance of your union or other protected concerted activities. WE WILL NOT encourage, solicit, or coerce you to decer- tify the Union. WE WILL NOT denigrate the Union so as to threaten that continued representation by the Union will be futile. WE WILL NOT remove, or direct employees to remove, food, displays, flyers, or decorations from the workplace because they relate to or are provided by the Union. WE WILL NOT change your terms and conditions of em- ployment without first notifying the Union and giving it an opportunity to bargain. WE WILL NOT modify the terms and conditions of our collective-bargaining agreement with the Union without the Union’s consent. WE WILL NOT refuse to bargain collectively with the Un- ion by failing and refusing to furnish it with requested in- formation that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of our unit employees, or by unreasonably delaying in furnishing it with such information. WE WILL NOT disparately enforce our Internet, Intranet, Voicemail and Electronic Communication policy to pro- hibit non-business emails relating to union activities while permitting non-business emails that do not relate to union activities. WE WILL NOT disparately enforce our non-solicitation policy to prohibit employees from leaving materials re- lated to the Union in the break room while permitting em- ployees to leave other non-business materials unrelated the Union in the break room. WE WILL NOTmaintain rules prohibiting your union rep- resentatives from assisting you and actively participating in any interview you reasonably believe may result in dis- cipline. WE WILL NOT promulgate or maintain rules prohibiting the following employee conduct:  using break rooms for pro-union activities and/or placing union literature in break rooms (other than on designated union bulletin boards);  conducting union business on “work place prop- erty”;  engaging in union conduct, including placing union-provided food, displays or other items in break rooms, without prior authorization by management;  displaying balloons and other pro-union para- phernalia in work areas;  bringing in “treats” or engaging in “other ef- forts” for coworkers;  soliciting in work areas other than by displaying personal effects;  displaying small symbols of union loyalty ex- cept in designated areas; and  displaying larger symbols of union loyalty in any and all areas. WE WILL NOT maintain rules prohibiting employee- stewards from placing union announcements on tables in call center break rooms or requiring them to remove such materials. WE WILL NOT maintain a work rule that prohibits you from discussing your performance appraisals, salary in- creases and other employment records. WE WILL NOT promulgate rules in response to your un- ion or other protected concerted activities that restrict you in the exercise of any of the rights listed above, including those that restrict your right to a union representative who can fully participate in any interview you reasonably be- lieve may result in discipline. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL rescind or revise the Internet, Intranet, Voicemail and Electronic Communication Policy and Em- ployment Records Policy in the employee handbook. WE WILL rescind or revise our non-solicitation policy in the employee handbook. WE WILL rescind or revise the confidentiality provisions in our employee handbook that prohibit you from discuss- ing your performance appraisals, salary increases, disci- plinary action reports, and other employment records. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 WE WILL rescind or revise the rules prohibiting certain employee conduct described above. WE WILL rescind or revise the rule prohibiting union an- nouncements in employee break rooms. WE WILL rescind or revise the rules restricting the par- ticipation of union representatives in any interview you reasonably believe may result in discipline. WE WILL furnish you with inserts for the current em- ployee handbook that advise that the unlawful provisions have been rescinded, or WE WILL publish and distribute re- vised employee handbooks that do not contain the unlaw- ful provisions. WE WILL furnish you with a notice for the rules de- scribed above that are not in the employee handbook stat- ing that such rules have been rescinded or providing law- fully worded rules. WE WILL distribute to supervisors and managers at all facilities revised Disciplinary Action Report forms that are not labeled “Confidential,” and WE WILL use those re- vised forms when issuing discipline. WE WILL rescind the changes in your terms and condi- tions of employment that we unilaterally implemented in March, May, June, August, October, and November 2016. WE WILL make employees affected by the foregoing un- lawful changes whole, with interest, for any loss of earn- ings and other benefits suffered as a result of these changes. WE WILL compensate affected employees for the ad- verse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Di- rector for Region 28, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. WE WILLrescind the May 2016 modifications to the col- lective-bargaining agreement affecting withholding of un- ion dues and continue in effect all the terms and conditions of employment contained in the collective-bargaining agreement covering employees in the unit described be- low, including the deduction of dues from the earnings of unit employees attributable to the performance of commu- nity interpreting work. WE WILL reimburse the Union for all dues that we failed to deduct from wages earned for community interpreting work. WE WILL, before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representa- tive of our employees in the following bargaining units: All full-time and flex staff Video Interpreters (VIs) em- ployed by the Employer at its facility located at 4542 Ruffner Street, Suite 270, San Diego, California, but ex- cluding all other employees, center assistants, confiden- tial employees, managers, office clerical employees and guards, professional employees and supervisors as de- fined by the National Labor Relations Act. All full-time and flex staff Video Interpreters (VIs) em- ployed by the Employer at its Denver, Colorado facility, but excluding all other employees, center assistants, con- fidential employees, managers, office clerical employ- ees and guards, professional employees and supervisors as defined by the National Labor Relations Act. All full-time and flex staff Video Interpreters employed by the Employer in Tempe, Arizona, but excluding all other employees, center assistants, confidential employ- ees, managers, office clerical employees and guards, professional employees and supervisors as defined by the National Labor Relations Act. All full-time and flex staff Video Interpreters (VIs) em- ployed by the Employer at its facility located in Oakland, California, but excluding all other employees, center as- sistants, confidential employees, managers, office cleri- cal employees and guards, professional employees and supervisors as defined by the National Labor Relations Act. WE WILL furnish to the Union in a timely manner the information requested by the Union on April 15, July 6, July 14, August 3, and November 9, 2016, except for the information regarding verification that the computer sys- tem was free of technical abnormalities. PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC D/B/A ZVRS The Board’s decision can be found at https://www.nlrb.gov/case/28-CA-179794 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. PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 11 APPENDIX C EXPLANATION OF RIGHTS 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 vi- olated 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 ac- tivities. Employees covered by the National Labor Relations Act (NLRA) have the right to join together to improve their wages and working conditions, including by organ- izing a union and bargaining collectively with their em- ployer, and also the right to choose not to do so. This Ex- planation of Rights contains important information about your rights under this Federal law. The National Labor Relations Board (NLRB) has or- dered your employer, Purple Communications, Inc. and its Successor and Joint Employer CSDVRS, LLC d/b/a ZVRS, to provide you with this Explanation of Rights to describe your rights and to provide examples of illegal be- havior. Under the NLRA, you have the right to  Organize a union to negotiate with your em- ployer concerning your wages, hours, and work- ing conditions.  Support your union in negotiations.  Discuss your wages, benefits, other terms and conditions of employment, and collective-bar- gaining negotiations with your coworkers or your union.  Take action with one or more coworkers to im- prove your working conditions.  Choose not to do any of these activities. It is illegal for your employer to • Threaten you with job loss or loss of pay or benefits if you support a union or act in support of collective bargaining. • Remove, or direct you to remove, union-provided food, pro-union displays or pro-union decorations from employee break rooms. • Deny your request to be represented by a union rep- resentative during an interview you reasonably be- lieve may result in discipline. • Improperly restrict your union representative’s abil- ity to provide you with assistance and counsel in such an interview. • Make changes in your terms and conditions of em- ployment (such as pay differentials and dues with- holding) without first providing your union with no- tice of the proposed changes and affording the un- ion an opportunity to bargain about the changes, ex- cept in certain situations. • Implement new rules or directives because you formed, joined or assisted the union that represents you, or because you took action with one or more coworkers to improve your working conditions, or to discourage you from doing so. • Warn, suspend, discharge, demote, or transfer you, or eliminate your work, because you have sup- ported the union or acted in support of collective bargaining. It is also illegal for your employer to threaten to do any of these things. • Fail or refuse to provide your union, when re- quested by the union to do so, information the union needs to do its job as your representative, including documents it requests in connection with a griev- ance over employee discipline. • Fail or refuse to honor any collective-bargaining agreement that it reaches with your union. • Retaliate against you for participating in collective bargaining or assisting your union in collective bar- gaining. Illegal conduct will not be permitted. The NLRB en- forces the NLRA by prosecuting violations. If you believe your rights or the rights of others have been violated, you should contact the NLRB to protect your rights. You should do so promptly, since the NLRA contains a six- month statute of limitations. This means that a charge must be filed within six months of when you knew or DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 should have known of the conduct you believe to be un- lawful. You may ask about a possible violation without your employer or anyone else being informed that you have done so. The NLRB will conduct an investigation of possible violations if a charge is filed. Charges may be filed by any person and need not be filed by the employee directly affected by the violation. The Board’s decision can be found at https://www.nlrb.gov/case/28-CA-179794 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. Fernando Anzaldua and Kyler Scheid, Esqs., for the General Counsel. Lawrence Levien, Esther G. Lander, Andrew Turnbull, and James Crowley, Esqs. (Akin Gump Strauss Hauer & Feld LLP), for the Respondent. Martin Yost, for the Charging Party. DECISION STATEMENT OF THE CASE MARA-LOUISE ANZALONE, Administrative Law Judge. I heard this case over the course of 16 days between July 13 and October 3, 2017, in Phoenix, Arizona, Denver, Colorado, and San Diego, California. This case was tried following the issuance of an Or- der further consolidating cases, third consolidated complaint, and notice of hearing (the complaint) by the Regional Director for Region 28 of the National Labor Relations Board on June 19, 2017. The complaint was based on a number of original and amended unfair labor practice charges, as captioned above, filed by Charging Party Pacific Media Workers Guild, Local 39521, The Newspaper Guild, Communications Workers of America, 1 Abbreviations used in this decision are as follows: “Tr.” for tran- script; “GC Exh.” for General Counsel’s Exhibit; “R. Exh.” for Respond- ent’s Exhibit; “Jt. Exh.” for Joint Exhibit; “GC Br.” for the General Counsel’s post-hearing brief and “R. Br.” for Respondent’s post-hearing brief. 2 I have based my credibility resolutions on consideration of a number of factors, including but not necessarily limited to, inherent interests and demeanor of witnesses, corroboration of testimony and consistency with admitted or established facts, inherent probabilities, and reasonable in- ferences that may be drawn from a record as a whole. Credibility find- ings need not be all-or-nothing propositions, and it is common for a fact AFL–CIO (Charging Party or the Union). The General Counsel alleges that Purple Communications, Inc. (Purple) and its suc- cessor and joint employer, CSDVRS, LLC (CSDVRS) violated Sections 8(a)(5), (3), and (1) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et. seq. (the Act). Purple and CSDVRS (collectively referred to herein as Respondent) ad- mit to constituting a joint employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent filed a timely answer to the complaint denying the commission of the alleged unfair labor practices alleged against it. At trial, all parties were afforded the right to call, examine, and cross-examine witnesses, to present any relevant documen- tary evidence, to argue their respective legal positions orally, and to file post-hearing briefs.1 Posthearing briefs were filed by the General Counsel and Respondent, and each of these briefs has been carefully considered. Accordingly, based upon the entire record herein, including the post-hearing briefs and my observa- tion of the credibility of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION The complaint alleges that Purple, a corporation with a prin- cipal place of business in Rocklin, California, is engaged in the business of providing interpreting services for the deaf and hard of hearing. The complaint alleges and Purple admits that it an- nually performs services in excess of $50,000 in States other than California. CSDVRS, a corporation with a principal place of business in Clearwater, Florida, purchased Purple’s business in February 2017, and continued to operate it in basically un- changed form thereafter. Accordingly, I find that Purple and CSDVRS are employers engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. I additionally find that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. Based on the foregoing, I find that this dispute af- fects commerce and that the National Labor Relations Board (the Board) has jurisdiction of this case, pursuant to Section 10(a) of the Act. II. FACTUAL BACKGROUND2 This case involves alleged unlawful conduct by Respondent following the execution of an initial collective-bargaining agree- ment with Charging Party, the recently certified bargaining rep- resentative for a unit of video interpreters or “VIs” at four of its finder to credit some, but not all, of a witness’ testimony. Hill & Dales General Hospital, 360 NLRB 611, 615 (2014); Daikishi Corp., 335 NLRB 622, 633 (2001), enfd. 56 Fed Appx. 516 (D.C. Cir. 2003). I also recognize that the testimony of current employees may be deemed as particularly reliable when their testimony contradicts that of their super- visors, because such witnesses are testifying adversely to their pecuniary interests. Flexsteel Industries, Inc., 316 NLRB 745 (1995); Gold Stand- ard Enterprises, Inc., 234 NLRB 618, 619 (1978). Finally, I have also taken into account the effects of the passage of time on memory, given that a good deal of the testimony in this case took place several months after the events in question. PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 13 locations.3 A. Respondent’s operations Respondent provides American Sign Language interpreting services for the deaf and hard-of-hearing communities. Its ser- vices include Video Relay Service (VRS) interpreting, which in- volves VIs translating between Respondent’s clients and hearing persons via video conference throughout Respondent’s (approx- imately) 19 call centers nationwide. Respondent employs both full-time and part-time VIs (referred to as “flex” VIs). Respond- ent also provides community interpreting, which, as the name suggests, involves interpreting in various community settings, such as public announcements, theater performances and court room interpreting. While Respondent employs individuals who solely perform community interpreting (known as “community interpreters”), it also assigns community interpreting work to VIs and outside contractors. (Tr. 1177–1183, 1195–1197.) During the time period relevant to this decision, Respondent’s chief executive officer (CEO) was Bob Rae, who was supported by an upper management team that includes Vice President of Operations Francine Cummings, Regional Director of Opera- tions Greg Camp and Associate Director of Operations Kim Sur- rency. Reporting to Surrency is Respondent’s Operations Man- ager Jennifer Stambaugh (Stambaugh), who is charged with overseeing the four unionized call centers. (Tr. 1177, 1249– 1250, 2183–2186, 2339.) Each call center is supervised by a center manager who reports to Stambaugh. During the relevant period, Cheryl Jonagan, fol- lowed by Sonoma Fragassi, served as center manager for Tempe. In San Diego, the position was held by Brad Godfrey, followed by Kristill Brown, Tera Thrasher, and then Henrik Ek, who cur- rently holds the position. Dora Veith fills the role in Denver, where she is supported by Kelly Leo, who holds the title of center supervisor. (Tr. 441–443, 666, 1121–1122, 1240, 1465–1466, 1718, 1896, 1956, 2075). Christy McBee is Respondent’s customer experience man- ager; as such, she is responsible for investigating and responding to customer complaints about individual VIs. Respondent’s hu- man resources function is headed by Sarah Haraz, who carries the title of human resources business partner. (Tr. 187, 2186) B. The Union’s certification and the parties’ collective-bar- gaining negotiations Beginning in 2012, the Union held an organizing campaign at several of Respondent’s call centers; the following year, elec- tions were held at call centers located in six locations. Eligible to vote were VIs, but not community interpreters. The Union was voted the exclusive bargaining representative for four units (in Denver, Colorado, Tempe, Arizona, Oakland, California and San Diego, California), each consisting of full-time and flex VIs, and was certified as such in December 2012. The Certification of Representative issued by the Board for each of the units 3 At various points throughout the record, the transcript contains ref- erences to “BI” instead of “VI”; the record is hereby corrected in that regard. 4 Specifically, the Union’s negotiator sought assurance that one of Respondent’s proposals (to offer unit employees overtime waivers) might operate to reduce the amount of community interpreting they were identifies it as consisting of “full-time and flex VIs” and makes no mention of community interpreters. (Tr. 1178, 1361–1362, 2592–2593; Jt. Exhs. 1, 32.) I will generally refer to the union- represented employees at the four locations as the “unit employ- ees.” Over a 2-year period beginning in March 2013, the parties bar- gained a master collective-bargaining agreement (the CBA) cov- ering the unit employees. In defense of numerous allegations, Respondent argues that it is not obligated to bargain over the terms and conditions of unit employees when they perform com- munity interpreting work (alternately referred to as “community work”). Accordingly, a discussion of the parties’ collective-bar- gaining history is appropriate. During the negotiations, the par- ties were aware that unit members were performing community interpreting work, and that certain of them (those hired pre-2010) received a wage differential for doing so. Early in the negotia- tions in September 2013, Respondent’s chief negotiator asked the Union’s chief negotiator point blank “if community assign- ments are covered work,” to which he responded, “yes.” At no time during the negotiations did any management representative challenge this characterization. (Tr. 1178, 1195, 1211–1222, 1373–1374, 2445–2453, 2583, 2594, 2622–2623; Jt. Exh. 1; GC Exh. 107.) At least one time during bargaining, the Union expressed con- cern about how the contractual language would impact the per- formance of community work by unit employees.4 When the parties began to negotiate economic issues, the Union submitted a package proposal including a proposed 10 percent pay differ- ential for “community assignments.” Respondent’s negotiator responded by referring to the “current practice” of paying a com- munity differential for certain employees (i.e., those hired pre- 2010). The following month, Respondent rejected the Union’s proposed differential for all employees. In August, the Union abandoned that demand, but instead proposed that Respondent pay “other differentials as currently paid.” The final, executed agreement contains no such language. However, after the con- tract became effective, pre-2010 hires continued to receive the differential when they performed community interpreting. (R. Exh. 10, 11, 12; GC Exh. 109; Jt. Exh. 1; Tr. 2626–2627) C. The initial collective-bargaining agreement and “unit work” The CBA’s recognition clause does not define the bargaining unit in terms of the scope of work performed, but rather states that Respondent recognizes a unit of “full-time and flex Video Interpreters” at each of the four unionized call centers. While it sets forth specific terms of employment for the performance of video-relay interpretation (VRS) work (such as scheduling and pay differentials), it makes no mention of corresponding terms for community interpreting. Thus, when unit employees perform community work, they are subject to terms and conditions (such as a scheduling protocol, emergency pay, travel pay and mileage assigned. In a June 2013 proposal, the Union addressed this concern with language providing that unit employees would not be assigned “commu- nity hours” based on whether they signed overtime waivers. The record is unclear as to how Respondent specifically responded to this proposal, but it does not appear in the final, executed contract. (GC Exh. 107, 110; Jt. Exh. 1.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 reimbursement) that are mentioned nowhere in the contract. (Tr. 1198, 1200.) That said, other portions of the CBA apply ex- pressly to “all work” performed by unit employees. These por- tions include the contract’s article on overtime, as well as its dues check off provision, which is discussed in more detail infra. The CBA also contains the following work exclusivity lan- guage: 1.2 Except as outlined in Section 1.3, below, performance of the following, whether by presently or normally used processes or equipment or by new or modified processes or equipment, shall be assigned only to employees covered by this contract: a. The kind of work either normally or presently performed within the unit covered by this contract, b. Any kind of work similar in skill, and performing similar functions, as the kind of work either normally or presently per- formed in said unit, and, c. Any other kind of work regularly assigned to be performed within said unit. 1.3 Excluded employees may perform the work described in Section 1.2 above when volume exceeds expectations, to pro- vide training and other support where needed, for testing new processes, and for other similar reasons that are beyond normal operations. (Jt. Exh. 1.) D. Additional collective-bargaining agreement provisions rele- vant to this proceeding The contract as executed (see Jt. Exh. 1) provides for final and binding arbitration of grievances arising under it, and contains a number of additional provisions relevant to this case: 1.“Union staff representatives” versus “Union stewards” The contract recognizes two categories of individuals who may act on behalf of the Union: (a) “Union representatives” (also referred to as “Union staff representatives”); and (b) “employee representatives” (also referred to as “Union stewards”). The contract contains only one provision addressing the former, “rep- resentative” category, article 24. It states: Article 24—Union Representative Union staff representative(s) shall be allowed reasonable ac- cess to non-production areas of call centers covered by this Agreement after coordinating with the Call Center Manager. Said representatives must follow all federally mandated rules and procedures. If it becomes necessary for the staff repre- sentative to discuss Union business with a member of the bar- gaining unit at the Company’s facility, the representative may do so after first getting approval of the Call Center Manager or his/her designee. Such approval shall not be unreasonably withheld; provided, however, any such discussion shall be on non-work time and shall not cause any disruption of work of either the employee with whom the discussion is to be held or any other employee. Martin Yost (Yost), who is also a flex VI at Respondent’s San Diego call center, is the Union’s sole staff representative re- sponsible for representing the unit employees. (Tr. 2578, 2590–2591.) “Stewards,” by contrast, are mentioned in several portions of the contract. In addition to being mentioned in the contract’s Weingarten provision, their use of union time during certain meetings is addressed in another article, discussed infra. 2. Management-rights clause The contract also contains a management-rights clause, which grants Respondent the sole and exclusive right, inter alia, to:  direct the work force, establish schedules of operations, and determine staffing patterns and levels and the number of employees needed;  manage and control its departments, buildings, facilities, equipment and operations…discontinue work for business, economic, or operational reasons;  establish work standards, demote, suspend, discipline and discharge employees, determine the quality of customer ser- vices, and maintain the discipline and efficiency of its employ- ees; and  specify or assign work requirements and overtime, assign work and decide which employees are qualified to perform such work, and determine working hours, shift assignments, and days off. 3. Union entitlement to written discipline documents The contract provides that Respondent must provide copies of “any criticism, commendation, appraisal or rating of such em- ployee’s performance in the employee’s job or any other com- ment or notation regarding the employee’s performance disci- pline issued to unit employees within one week of it being placed in the employee’s personnel file.” (Jt. Exh. 1 at 8; Tr. 2685.) Finally, the contract does not contain any provision suscepti- ble to interpretation as a “zipper clause,” i.e., one whereby the parties waive the right to bargain, during the term of the contract, over mandatory subjects not addressed in the contract and not raised during bargaining. E. Respondent’s Electronic Communications Policy and The Board’s 2015 Purple Communications email decision Since June 19, 2012, Respondent has maintained a policy in its nationwide handbook whereby employees are prohibited from using Respondent’s email system to, inter alia, “engag[e] in ac- tivities on behalf of organizations or persons with no profes- sional or business affiliation with the Company.” (See Jt. Exh. 24 at 30; GC Exh. 2 at 30.) The Board ruled on this policy, which I will refer to as the Electronic Communications Policy, four years ago. See Purple Communications, Inc., 361 NLRB 1050, 1063 (2014) (Purple I). In that case, the Board took occasion to partially overrule Register Guard, 351 NLRB 1110 (2007), find- ing that employees who are granted access to their employer’s email system have a presumptive right to access that email sys- tem during nonworking time, unless the employer can demon- strate the existence of “special circumstances necessary to main- tain production or discipline.” Id. The Purple I Board remanded the proceeding to Administra- tive Law Judge Paul Bogas for the purpose of allowing the PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 15 parties to introduce evidence relevant to a determination of the lawfulness of the policy under the new standard. Respondent chose not to introduce additional evidence of “special circum- stances” justifying its policy and represented that it would not attempt to rebut the new presumption. Subsequently, Judge Bo- gas issued a Supplemental Decision, finding that, in the absence of demonstrated special circumstances, the Electronic Commu- nications Policy violated Section 8(a)(1). On exceptions, the Re- spondent conceded that it had not shown special circumstances justifying its policy but contended that Purple I, to the extent it partially overruled Register Guard, had been wrongly decided. On March 24, 2017, the Board rejected this position, affirmed Judge Bogas’ supplemental decision and ordered that Respond- ent rescind the Electronic Communications Policy. See Purple Communications, 365 NLRB No. 50 (2017). Respondent’s ap- peal of this decision is currently before the Court of Appeals for the Ninth Circuit. See NLRB v. Purple Communications, Inc., Case Nos. 17–70948, 17–71062 and 17–71276 (9th Cir. Oct. 2, 2017). III. ANALYSIS OF INDIVIDUAL ALLEGATIONS The General Counsel alleges that, following the unit employ- ees’ selection of the Union as their bargaining representative, Respondent engaged in numerous actions in violation of Sec- tions 8(a)(5), (3), and (1). The General Counsel alleges that Re- spondent increased discipline based on customer complaints, subjected employees to unwarranted investigation, and denied an employee contractually guaranteed union time. Respondent is also accused of engaging in several unilateral changes, including implementing new work rules, ceasing the deduction of dues for certain unit work and ceasing payment of an established wage differential. The General Counsel further alleges that Respond- ent failed to respond to multiple information requests and en- gaged in numerous independent 8(a)(1) allegations, including making threats, interrogating unit members, engaging in surveil- lance, violating Weingarten rights and promulgating, maintain- ing, and enforcing multiple unlawful rules. To summarize my findings, I have that found the following complaint paragraphs and subparagraphs were sustained and should be remedied: 5(a), 5(b), 5(c), 5(d), 5(e), 5(g), 5(i), 5(j), 5(l), 5(m), 5(n), 5(o), 5(p), 5(q), 5(r), 5(s), 5(t)(3)(i), 5(u), 5(v), 5(w), 5(x)(2), 5(x)(3), 5(x)(4) to the extent it alleges the state- ment, “meetings must take place off the VRS floor,” 5(x)(6) and (7), 5(y)(3) through (5), 5(y)(7), 5(y)(8), 5(z)(1), 5(aa), 5(cc), 5(ee), 5(hh); 6(f); 7(n), 7(p)(1) through (3), 7(p)(5) though (8), 7(q), 7(r), 7(t), 7(w); 8(a) and 8(d). I have found the following complaint paragraphs and subpar- agraphs were not sustained and should be dismissed: 5(f), 5(h), 5(k), 5(t)(3)(ii), 5(t)(3)(iii), 5(y)(1), 5(y)(2), 5(y)(6), 5(y)(9), 5(bb), 5(dd), 5(gg), 5(ii), 5(jj), 5(kk), 5(ll),5 6(c), 6(j), 7(p)(4) and 7(s). Finally, I have found complaint paragraph 8(b) should be de- ferred to the parties’ grievance and arbitration procedure set forth 5 Contrary to Respondent’s assertions, I agree with the General Coun- sel that the allegations set forth in its September 25, 2017 Notice of Intent to Amend Complaint (¶ 5(ii), ¶ 5(jj), ¶ 5(kk), and ¶ 5(ll)) were fairly and fully litigated during the hearing. General Counsel’s motion to amend is therefore granted. in their collective-bargaining agreement.6 An analysis of each allegation follows: A. The parties’ April 1, 2015 email “messaging” following execution of the CBA Shortly following the parties’ execution of their first collec- tive-bargaining agreement, both Respondent and the Union took to Respondent’s email system to broadcast their respective posi- tions on the contract. Respondent’s position was announced by CEO Rae, who sent two company-wide emails, each of which is alleged by the General Counsel to have violated the Act. Rae did not testify. 1. CEO email about union dues and other “risks and hazards of unionization” [¶ 5(c)] a. Facts On or about March 23, 2015, Respondent’s then-Chief Exec- utive Officer Bob Rae (Rae) emailed Respondent’s VI workforce (including both represented and nonrepresented employees) stat- ing, in part: As you may have heard, interpreters who voted to become members of the CWA Union have ratified the contract that was reached after two years of bargaining. Needless to say, the bar- gaining process was long and arduous, but one that we believe was marked by a respectful attitude on both sides. The contract is for a two year period and, we believe, preserves the best interests of the Company. Essentially, it keeps the bar- gaining unit interpreters on par with our interpreters in all other call centers, which was one of the Company’s objectives in bar- gaining. There have been some adjustments in our operational practices to include KPIs; adjustments which the Company was previously considering in any event. Subsequently, these changes will be simultaneously implemented in all non-bar- gaining centers. While we respect the right of all employees to choose, we con- tinue to believe that our employees who have chosen not to un- ionize have received the better deal because they get what the unionized employees will receive but will not be required to pay dues or take on the other risks and hazards of unionization. (Jt. Exh. 72.) On April 1, 2015, Yost and VI-stewards Michelle Caplette (Caplette) and Mary Jane Moore (Moore), sent an email to all VIs nationwide, including those in unrepresented call cen- ters, touting the Union’s victory in bargaining a contract. (Tr. 2635; Jt. Exh. 63.) Later that day, Rae emailed the workforce again, stating: As stated in my email on March 24th, we have reached agree- ment with the CWA union and now have a contract in place 6 The allegations contained in the following complaint paragraphs were resolved by a pre-hearing, non-Board settlement between Respond- ent and the Union: 6(a), 6(b), 7(o), 7(u), 7(v), 7(x), 7(y), 7(z), 7(aa), 7(dd), 7(jj), 7(kk), 7(mm), 7(nn), 7(oo), 7(pp), 7(qq), 7(rr), and 8(c). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 that offers substantially the same as what all of our employees in non-unionized centers currently receive without having to pay dues. The few differences that were not in place in the non- unionized centers will be rolled out. (Jt. Exh. 73.) b. Analysis The General Counsel alleges that Rae’s company-wide emails constituted an unlawful threat of futility, as well as a promise of benefits to employee who refrained from electing union repre- sentation. I agree. Section 8(a)(1) of the Act provides that “[i]t shall be an unfair labor practice for an employer to interfere with, restrain, or co- erce employees in the exercise of the rights guaranteed in section 7 [of the Act].” Well-established Board precedent directs an 8(a)(1) violation where an employer’s conduct “may reasonably be said to have a tendency to interfere with the free exercise of employee rights.” Unbelievable, Inc., 321 NLRB 815 (1997). This objective standard does not depend on whether the “em- ployee in question was actually intimidated.” Multi-Ad Services, 331 NLRB 1226, 1228 (2000), enfd. 255 F.3d 363 (7th Cir. 2001). Rather, whether the statements are coercive is viewed from the objective standpoint of a reasonable employee, over whom the employer has a measure of economic power. See Mes- ker Door, Inc., 357 NLRB 591, 595 (2011). When an employer suggests that its employees’ organizing ef- forts and the possible selection of the Union as their collective- bargaining representative would be an exercise in futility, the Act is violated. Atlas Microfilming, 267 NLRB 682, 685–686 (1983). Typically, statements of futility take the form of an em- ployer asserting that, even were a union designated as employ- ees’ bargaining representative, the employer would “never” agree to a contract. See, e.g., id. However, the Board has also held that an employer also conveys the futility of selecting a bar- gaining representative by suggesting that the unrepresented por- tion of its workforce that they will share in any benefits secured by the union for employees at its unionized facilities. See Amer- ican Telecommunications Corporation, 249 NLRB 1135 (1980) (unlawful to inform employees that employer made a practice of spreading benefits equally and therefore selecting a union would mean paying dues for nothing in return). Likewise, informing employees that they would receive all the benefits of a union contract without a union constitutes a promise of benefits made for the purpose of coercing employees to abstain from union or- ganizing efforts. Id. Certainly, however, not all employer statements about the benefits of unionizing are considered de facto unlawful. Em- ployers’ right to free speech is explicitly granted by Section 8(c) of the Act, and the Board has explicitly found that an employer may lawfully present its employees with a comparison of “ben- efits presently in effect” at its non-unionized versus unionized work sites, as long as those communications take place “in a manner and setting free from coercion.” Globe Shopping City, 203 NLRB 177, 181 (1973); see also Dlubak Corp., 307 NLRB 1138, 1151 (1992) (“an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communi- cations do not contain a threat of reprisal or force or promise of benefit”). The key question is whether the employer’s compari- son of current unionized versus non-unionized terms and condi- tions of employment involves “misrepresentation, threats, or promises relating to existing or prospective benefits or terms of employment.” Globe Shopping City, supra. In this regard, Re- spondent argues that Rae’s statements were simply his lawful at- tempts to respond to the Union’s misstatements about wages pro- vided to non-union employees and clarification that Respondent “had already decided to provide non-union centers employment terms it gave to the Union in bargaining.” (R. Br. at 130.) Based on the above-cited Board authority, I disagree with Re- spondent and find that Rae’s company-wide emails, read to- gether, constituted an unlawful promise of benefits and also amounted to an unlawful statement of futility. First, I find that Rae’s communications constituted a promise of benefits made for the purpose of coercing employees into re- jecting the union as their bargaining representative. Rae did not limit his remarks to a permissible comparison of current benefits enjoyed at union versus non-union centers; he explicitly prom- ised to “roll out” at its nonunion centers any benefits “not in place” that the Union had obtained in bargaining. In the context of his repeated reference to unrepresented VIs enjoying such benefits without paying union dues, this clearly amounted to a promise that all of its employees—including those at call centers where the union had been rejected—would receive the benefits of the recently negotiated contract without paying dues. This unlawful promise of benefits, per the Board law discussed supra, removed Rae’s statements from the protection of Section 8(c). I additionally find that Rae’s emails constituted an unlawful statement of futility. The emails sent an unmistakable message: employees at the recently unionized call centers had been duped into paying dues and gotten nothing more than they would have without union representation. In fact, he indicated, they had only managed—after 2 years of bargaining—to remain “on par” with their non-union colleagues. In other words, they had frittered away their union dues for nothing more than subjecting them- selves to unspecified “risks and hazards” as represented employ- ees. Any reasonable employee reading these emails would un- derstand those who had exercised their Section 7 right to vote for union representation had done so in vain. Moreover, unrepre- sented VIs would reasonably conclude that refraining from or- ganizing activity would allow them to enjoy pay, benefits and working conditions pegged to those of their represented counter- parts without facing any risk, hazard or dues obligation. Accordingly, I find that Respondent, by Rae, violated Section 8(a)(1) of the Act as alleged in ¶ 5(c) of the complaint. 2. Management invokes its Electronic Communications Policy [¶ 5(a), ¶ 5(b), ¶ 5(ee)] At hearing, the parties stipulated that, since at least October 6, 2014, Respondent has continued to maintain its Electronic Com- munications Policy, which the Board found unlawful in 2017. See Purple Communications, 365 NLRB No. 50 (2017). By identical emails on April 1, center managers in San Diego and Tempe responded to Yost and Moore’s company-wide emails announcing the Union’s success in obtaining a first contract, in- voked this policy. By doing so, the General Counsel alleges, these managers applied the rule in a discriminatory fashion PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 17 against employee-stewards. a. Facts On April 1, 2015, Respondent’s San Diego center manager, Brad Godfrey (Godfrey) emailed Yost as follows: I understand you are using our email system to communicate with employees in all our call centers regarding unionization. That is in violation of our Company policy that limits email use for business purposes only. It is important that you stop using our email for this purpose. As you know you can use your per- sonal email to communicate with employees on their personal email with regards to these matters. On the same day, Tempe Center Manager Jonagan sent an iden- tical email to VI-steward Moore, who worked as a VI at that call center. The record indicates that, notwithstanding its continued maintenance of the Electronic Communications Policy, Re- spondent has allowed employees to use its email system for non- work, non-union business, including organizing potlucks and charity fundraising drives. (Jt. Exh. 68, 69, 70; GC Exh. 14, 37; Tr. 638) b. Analysis As a preliminary matter, I find that Respondent continued to violate the Act by maintaining its Electronic Communications Policy in the face of a Board order to rescind it, and that Godfrey and Jonagan’s pronouncements, to the extent that they constitute an application of that policy, are likewise unlawful.7 In this re- gard, Respondent argues that the Board erred by overturning Register Guard. This is an argument for the Board, not me, to consider; I am bound to follow Board decisions that have not been reversed by the Board or the Supreme Court. See Pathmark Stores, 342 NLRB 378, 378 fn. 1 (2004); Hebert Industrial In- sulation Corp., 312 NLRB 602, 608 (1993); Lumber & Mill Em- ployers Assn., 265 NLRB 199 fn. 2 (1982), enfd. 736 F.2d 507 (9th Cir. 1984), cert. denied 469 U.S. 934 (1984).8 Regardless of how the Electronic Communications Policy fares under the new standard, I find that violates the Act be- cause, under the facts of this case, it was applied to restrict the exercise of Section 7 rights—specifically, the right of union stewards to broadcast their success in recent contract negotia- tions. See Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). It is well settled that even a facially valid rule may be unlawful when enforced in a discriminatory manner. Lawson Co., 267 NLRB 463 (1983); Hammary Mfg. Corp., 265 NLRB 57 (1982); St. Vincent’s Hosp., 265 NLRB 38 (1982). Accord- ingly, I find that, by continuing to maintain the Electronic Communications Policy and applying it to restrict union stew- ards from communicating regarding “unionization,” Respond- ent violated the Act as alleged in ¶ 5(a), ¶ 5(b) and ¶ 5(ee) of the complaint. 7 I note that the Godfrey and Jonagan emails are unlawful in their own right and without any reference to the underlying policy, in that they ex- plicitly ban protected conduct. Lutheran Heritage, 343 NLRB 646 (2004). 8 While I recognize that the Board in its recent decision, Boeing Co., 365 NLRB No. 154, slip op. (2017), indicated that it intends to evaluate 3. The Union’s April 1 announcement and Human Resources’ response [¶ 5(d)] a. Facts On April 1, 2015, Yost responded to Godfrey’s directive to the San Diego VI’s regarding personal use of email. In an email sent to Godfrey and Respondent’s then-VP of Human Resources, Tanya Monette (Monette), he stated that the union was “in the process” of sending an additional email to the workforce in re- sponse to Rae’s March 23/April 1 emails regarding the parties’ initial contract. Yost also stated that he intended to inform Re- spondent’s workforce, as a whole, that the contract covering un- ion-represented VIs was effective beginning that day. He ended the email as follows: I wasn’t aware there is a company policy that limits the use of email for business purposes only—I thought that policy was found to be unlawful in a recent Board decision. I also don’t remember bargaining any terms of email use in our labor agree- ment. Can you please send me a copy of the policy you are referring to and please include the date it was implemented. Godfrey deferred to Monette, who responded by emailing Yost a copy of Respondent’s employee handbook and referring him to the Electronic Communications Policy. She further stated, “[f]rom my understanding our case is still being reviewed and currently open therefore our policy is still in effect.” (Jt. Exh. 69, 70.) b. Analysis The General Counsel alleges that, by her email, Monette vio- lated Section 8(a)(1) of the Act by selectively enforcing Re- spondent’s Electronic Communications Policy against union-re- lated emails. I agree. As discussed, supra, an employer violates the Act by enforcing a work rule in a discriminatory manner (see cases cited, supra); Monette selectively applied Respondent’s policy to Yost’s announced email, which would have communi- cated a pro-union message to Respondent’s workforce. Accord- ingly, I find that Respondent violated the Act as alleged in ¶ 5(d) of the complaint. B. Treatment of community pay differentials following contract execution [¶ 8(a)] According to the General Counsel, in March 2016,9 Respond- ent violated Section 8(a)(5) by unilaterally ceasing to pay a wage differential for community interpreting work performed by cer- tain unit employees. Respondent does not deny having changed its practice, but asserts that it was permitted to make this change, because community interpreting work is “not unit work,” and al- ternately, because the Union waived its right to bargain over the future rules such as the Electronic Communications Policy under its new, balancing test (discussed infra), the fact remains that I am bound to fol- low its explicit determination regarding the policy in Purple Communi- cations, 365 NLRB No. 50 (2017), which the Board has yet to overrule. 9 Unless otherwise noted, all dates hereafter refer to 2016. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 rate of pay for such work. 1. Facts As noted supra, Respondent employs extra-unit individuals, known as community interpreters, whose job is to perform com- munity interpreting; in addition, Respondent has historically as- signed community work to the VIs now represented by the Un- ion. It is undisputed that, until 2010, Respondent paid VIs a dif- ferential for performing such work. That year, Respondent im- plemented a single pay rate, but grandfathered its current VIs. For at least 4 years, these employees were able to retain their dual rates, even if they transitioned their work status (i.e., from full-time to flex or vice versa). However, at some time thereaf- ter, Respondent began removing the dual rates of grandfathered employees when they changed their status.10 Thereafter, full- time VIs hired before 2010 who changed their status lost their differential for the community work they performed. The Union first learned of this change in March 2016, when VI Karen Boyle transitioned from full time to flex and lost her community differ- ential. The Union filed a grievance, but was informed by Haraz that, because the grievance concerned community work, it was not subject to the CBA’s grievance procedure. (Tr. 554, 1085– 1086, 1195–1197, 2111–2113, 2459–2464, 2578–2579, 2584; GC Exh. 48, 88, 89; Jt. Exh. 99.) 2. Analysis Section 8(a)(5) and 8(d) define the duty to bargain collec- tively, which requires an employer “to meet . . . and confer in good faith with respect to wages, hours, and other terms and con- ditions of employment.” NLRB v. Katz, 369 U.S. 736, 742–743 (1962). Thus, an employer may not change the terms and con- ditions of employment of represented employees, including pay differentials, without providing their representative with prior notice and an opportunity to bargain over such changes. See id. at 747; Northwest Graphics, Inc., 342 NLRB 1288 (2004). A violation of Section 8(a)(5) does not require a finding of bad faith. NLRB v. Katz, 369 U.S. at 743 and 747.11 As a preliminary matter, I reject Respondent’s contention that “community work” is not, and has never been, unit work and that therefore, Respondent is free to unilaterally change unit employ- ees’ terms and conditions of employment insofar as they relate to its performance. The Board certifications— as echoed in the master contract—define the bargaining unit by reference to the VI job title alone; however, at the time of certification and recog- nition, VIs were known to perform community interpreting work. After negotiations, during which the Union characterized community work as unit work with no disagreement expressed by Respondent, the parties agreed that the contract’s dues deduc- tion and overtime articles would apply to “all work” performed by VIs.12 Nor do I find compelling Respondent’s argument based on the 10 This change appears to have occurred at some point after Septem- ber 1, 2014, when steward Yost retained his differential despite stepping down from full-time to flex status. (Tr. 2584–2585; GC Exh. 106) 11 An unlawful unilateral change “frustrates the objectives of Section 8(a)(5),” because such a change “‘minimizes the influence of organized bargaining’ and emphasizes to the employees ‘that there is no necessity for a collective bargaining agent.’” Pleasantview Nursing Home v. contract’s work exclusivity provision. Respondent argues that, because Sections 1.2 and 1.3 of the agreement place restrictions on the performance of certain work performed by unit employees (restrictions the parties do not observe, in practice, to apply to community work), it follow that community work must not be “unit work.” This is a false equivalence: simply because the parties do not treat community interpreting work as meeting the contract’s standard for exclusive unit work does not remove it from the wider category of unit work. As such, I find that Re- spondent has recognized and is obligated to bargain over all work performed by its VIs, and reject its attempt to exclude cer- tain of that work from the scope of its bargaining obligation. See Glades Electric Cooperative, Inc., 366 NLRB No. 112, slip op. at 1, fn. 1, 12 (2018). That the parties chose not to include certain specific terms and conditions applicable only to community work does not change this result. In such circumstances, in the absence of zipper clause whereby the parties clearly and unmistakably agree not to bar- gain over issues not addressed by the contract during its pen- dency, the fact that they elected not to include language address- ing the performance of community work, does not, as Respond- ent suggests, remove that subject from the scope of the bargain- ing obligation. See Michigan Bell Telephone Co., 306 NLRB 281, 282 (1992) (in absence of an effective zipper clause, each party has the right, and the opposing party has the duty, to bar- gain about subjects not covered by the contract or otherwise waived in contract negotiations). Respondent next argues that it was privileged to cease paying unit employees a differential for community work because the Union waived its right to bargain over this matter in particular. It is certainly true that an employer’s otherwise unlawful change will be deemed valid conduct where it is shown that the union has waived its right to bargain over this matter. However, it is equally true that “[n]ational labor policy disfavors waivers of statutory rights by a union” and thus, they are not to be “lightly inferred.” C&P Telephone Co. v. NLRB, 687 F.2d 633, 636 (2d Cir. 1982); Georgia Power Co., 325 NLRB 420, 420 (1998). Thus, while the obligation to bargain “may be waived by the Un- ion either by the terms of a collective-bargaining agreement or by conduct . . .the waiver must be clear and unmistakable.” Har- ley-Davidson Motor Co., 366 NLRB No. 121, slip op. at 2 (2018) (citing Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). To meet this standard, the Board requires either that a contract clause include specific waiver language, or that the mat- ter claimed to have been waived be shown to have been fully discussed by the parties and that the union consciously yielded its interest in the matter. Allison Corp., 330 NLRB 1363, 1365 (2000). In this case, the contract contains no language explicitly waiv- ing unit employees’ right to a community differential in the event of a change in work status. Nor does Respondent contend that NLRB, 351 F.3d 747, 755 (6th Cir. 2003) (quoting Katz, supra at 744, and Loral Defense Systems-Akron v. NLRB, 200 F.3d 436, 449 (6th Cir. 1999)); Mercy Hosp. of Buffalo, 311 NLRB 869, 873 (1993). 12 To the extent Respondent’s brief suggests that its negotiator in- formed the Union that he considered its community work-related pro- posals “as permissive subjects of bargaining,” this is simply not borne out by the record. PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 19 the parties fully discussed this specific issue. Instead, Respond- ent urges that its rejection of the Union’s proposed wage differ- ential for all community work acted to waive the Union’s right to bargain over this subject. I cannot agree. As a preliminary matter, the proposal Respondent rejected would have done sig- nificantly more than guarantee a community differential for grandfathered employees who transitioned their work status— the Union wanted all unit employees to be paid the differential, something that had not been done in several years. Moreover, Respondent’s rejection of this proposal was explicitly couched in an assurance that it would continue with its “current practice” of paying a community differential for grandfathered employees. Significantly, Respondent carried through on this assurance (at least initially) after the contract became effective, when “grand- fathered” unit members continued to receive the differential even after changing their work status. Nothing in this sequence of events suggests that the Union clearly and unmistakably waived this term, and I therefore reject Respondent’s argument. Accordingly, I find that, in March 2016, Respondent violated Section 8(a)(5) by ceasing to allow employees hired before 2010 to retain their differential for community interpreting work after their work status changed from full time to “flex,” as alleged in ¶ 8(a) of the complaint. C. Deduction of union dues for community interpreting work [¶ 8(d)] In May 2016, Respondent admittedly ceased deducting dues for amounts earned by unit employees for performing commu- nity interpreting work. The General Counsel alleges that, by do- ing so, Respondent violated Section 8(d) of the Act. I agree. 1. Facts As noted, supra, the parties’ contract contains a standard dues deduction provision, whereby Respondent agrees to deduct dues from the “earnings” of employees who authorize such deduc- tions. The contract recites the following stipulated language of an employee’s assignment: I hereby assign to the Pacific Media Workers Guild, The News- Guild-CWA, and authorize the Employer to deduct biweekly from any salary earned or to be earned by me as an employee… (Jt. Exh. 1 at 4.) There is no evidence that, during bargaining, the parties discussed limiting dues deduction to wages earned performing VRS interpreting, as opposed to community work. It is undisputed that, for a year following its execution of the collective-bargaining agreement, Respondent deducted dues from all wages earned by unit employees who had executed a check-off authorization, regardless of whether those wages were attributable to community, as opposed to VRS, work. According to Haraz, she discovered this practice—which she characterized as an “administrative error”—in May 2016; Respondent thereaf- ter ceased deducting dues except for those attributable to wages earned for VRS work. The Union was not consulted regarding Haraz’ discovery of this “error” or Respondent’s cessation of withholding community work-related dues. (Tr. 1018–1020, 1041; Jt. Exh. 40.) 2. Analysis Section 8(d) specifies that during the term of a contract, the duty to bargain collectively “shall also mean that no party to such contract shall terminate or modify such contract . . . . ” When an employer party to an existing agreement modifies a term of that contract midterm, without the consent of the Union, the em- ployer has violated section 8(d), and therefore has committed a ULP under section 8(a)(5). Essentially, an 8(d) allegation is “a failure to adhere to the contract.” Bath Iron Works Corp., 345 NLRB 499, 501 (2005), affd. sub nom. Bath Marine Draftsmen’s Assn. v. NLRB, 475 F.3d 14 (1st Cir. 2007). In Section 8(d) contract-modification cases, the Board applies a “sound arguable basis” approach to determine whether the em- ployer’s action supported by, or is an unlawful modification of, the contract. See id. at 502–503. Once the General Counsel has identified a specific term contained in the contract that the em- ployer has modified (in this case, the dues-checkoff provision), the employer—to avoid a violation—must demonstrate that the contested action was taken based on an interpretation of that pro- vision, for which it had a “sound arguable basis” and further that it was not “motivated by union animus or . . . acting in bad faith . . . . ”’ Id. at 502 (internal citations omitted); Milwaukee Spring Div., 268 NLRB 601, 601 (1984). Under this standard, the em- ployer is not required to prove that its interpretation is correct, nor a more correct interpretation than that presented by the un- ion; instead, it must merely show that its interpretation is color- able. Bath Iron Works, 345 NLRB at 503. In this case, Respondent maintains that its conduct was lawful because: (a) the Union waived its right to dues related to com- munity interpreting work and/or (b) Respondent had a sound ar- guable basis for believing the Union had done so. In support of its waiver argument, Respondent argues that, when the Union accepted its rejection of a pay differential for all community in- terpreting work, it effectively walked away from its right the por- tion of dues related to such work. I cannot agree. As noted, supra, the “clear and unmistakable” standard requires that: (a) the subject alleged to have been waived was fully discussed by the parties, and (b) the party alleged to have waived its rights did so explicitly and with the full intent to release its interest in the matter. Allison Corp., 330 NLRB at 1365. Nor is there any in- dication that the parties ever discussed carving out community interpreting work from the contract’s dues-checkoff provision, let alone that the Union acquiesced to such an action. Moreover, as I have found, the parties’ bargaining history does not support a conclusion that the Union clearly and unmistakably waived the right to bargain over community interpreting work in general. I further find that Respondent has failed to demonstrate that it had a sound, arguable basis for its claimed belief that no dues were required to be deducted for community interpreting work. After the Union took the unambiguous position that community interpreting was bargaining unit work, Respondent expressly agreed to deduct dues from “any salary earned” by employees it knew to perform community interpreting work. As such, there is no plausible rationale for Respondent’s professed understand- ing that “any salary earned” in fact referred to any salary minus earnings from community interpreting work. Nor am I con- vinced of Respondent’s good faith in its handling of the dues de- ductions; I find it extremely unlikely that, for an entire year, Re- spondent mistakenly withheld dues (oddly, in strict accordance with the contract language) and only ceased doing so because DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 Haraz “discovered” this. Surely, a party acting in good faith would have immediately informed the Union of its mistake and sought to make employees whole for what would have amounted to a prohibited employer monetary contribution to a labor organ- ization in violation of Section 8(a)(2) of the Act. Accordingly, I find that, since about May 2016, the Respond- ent has failed to continue in effect all of the terms and conditions of the parties’ contract by ceasing the deduction of union dues and fees from the community interpreting wages of employees who authorized such deductions and by ceasing the remittance of those dues and fees to the Union. Respondent has thereby refused to bargain with the Union within the meaning of Sec- tion 8(d) of the Act in violation of Section 8(a)(5) and (1) of the Act. D. Enforcement of disciplinary standards for customer com- plaints [¶ 6(j)] The General Counsel alleges that, since approximately Janu- ary 2016, Respondent has more strictly enforced its disciplinary standards related to customer complaints against VIs in its San Diego and Denver call centers. This conduct, it is alleged, con- stituted 8(a)(3) discrimination. I find no merit to this allegation. 1. Facts Yost testified that, in his role as the Union’s staff representa- tive, he noticed a significant uptick in customer complaint disci- pline during the first half of 2016. He testified that he “sniffed a new policy” was to blame. On July 22, he sent Haraz a letter complaining about “recent and multiple” customer complaint disciplines issued to unit employees. According to his unrebut- ted testimony, Respondent did not respond. (GC Exh. 59; Tr. 2684–2686.) By way of background, complaints filed by Respondent’s cus- tomers—regardless of the call center to which they relate—are directed to Respondent’s customer experience manager, Christy McBee (McBee), who, on a monthly basis, reviews and investi- gates them. She then categorizes each complaint by “type” and shares this information with center managers and upper manage- ment in the form of monthly Excel spreadsheet reports. Begin- ning in 2012, Respondent began the process of generating “VI trend reports,” which compile the complaints (and commenda- tions) received by each interpreter over a running 12-month pe- riod. (Tr. 2186–2187, 2391–2392, 2402–2404.) There is no ev- idence of an orchestrated effort by management in 2016 to in- crease customer complaint discipline or change the standards therefor.13 Instead, the evidence relied on by the General Counsel in sup- port of this allegation is largely statistical, in the form of an in- crease in percentage of customer complaints resulting in disci- pline at its San Diego and Denver call centers: 2014 2015 2016 First ½ 2017 San Diego 1.78 1.6 7.14 8.0 13 Former Center Manager Jonagan testified that, at some point after July 2015, she was instructed by Stambaugh to discipline certain VIs contrary to prior practice, her purview was limited to the Tempe call Denver 2.56 3.57 2.6 2.13 On its face, this evidence indicates that in 2016, as alleged, there was a significant increase in the discipline-per-customer com- plaint ratio in San Diego; in Denver, however, the percentage increased by a statistically insignificant amount (.04 percent) that year, only to drop during the first six months of 2017. The testimonial evidence regarding the alleged “uptick” in customer complaints was anecdotal. For example, former San Diego center manager Marguerite Brooks, who served in that role from 2008–2011, testified that during that period, she per- sonally did not issue any discipline for customer complaints and that, after she stepped down to a VI position, she received one customer complaint in 2014 that was “written off” due to a com- puter malfunction and another that resulted in her receiving a discipline. San Diego VI Villegas testified that, while she had been counseled, but not disciplined, based on a customer com- plaint in 2010 or 2011, she received a warning for one in 2016. Likewise, Denver VI Espinoza testified that, prior to June 2016, she had received, at most, only “supportive” coaching for her customer complaints, but thereafter received written discipline. (Tr. 2086–2087, 2105–2106, 2315–2318, 2434–2438; Jt. Exh. 83.) 2. Analysis The Board will find a violation of Section 8(a)(3) where an employer “increases discipline of its employees or more strictly enforces its work rules in response to union activities.” Kitsap Tenant Support Services, 366 NLRB No. 98, slip op. at 21 (2018) (citing Dynamics Corp. of America, 286 NLRB 920, 921 (1987), enfd. 928 F.2d 609 (2d Cir. 1991)). The burden shifting in such a case works as follows: If the General Counsel demonstrates that the pattern of disci- pline after the commencement of union activity deviated from the pattern prior to the start of union activity, a prima facie case of discriminatory motive is established requiring the Respond- ent to show that its increased discipline was motivated by con- siderations unrelated to its employees’ union activities. Id. (citing Jennie-O Foods, 301 NLRB 305, 311 (1991)). The Board recently found this burden to be met in Kitsap Ten- ant Support Services, 366 NLRB No. 98, supra. In that case, a sharp increase in discipline occurred immediately following a union election and was found attributable to the employer in- creasing its inspections in both frequency and level of detail, is- suing discipline for infractions previously not met with disci- pline and increasing its documentation of discipline. Moreover, several statements attributed to managers all but admitted that it was deliberately ramping up discipline. Thus, the changed pat- tern found to establish a prima facie case was far from purely numerical. Id. Moreover, the Board focused on the timing of the increased discipline, which closely corresponded to the em- ployees’ union activity. Id. (citing St. John’s Community Ser- vices—New Jersey, 355 NLRB 414, 414–415 (2010) (employer violated Section 8(a)(3) where, prior to unionization, it center and she did not specify whether those disciplines were based on customer complaints. (Tr. 758) PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 21 inconsistently enforced its medication administration policy, told an employee that it would go “by the book” because of its employees’ union activity, and discharged an employee under its new “by the book” policy “less than 2 weeks after the [u]nion’s certification”)). In this case, while an increase in discipline (significant in San Diego and meager in Denver) occurred in 2016, the record simply does not demonstrate a contemporaneous change in Re- spondent’s practice in handling customer complaints. (GC Br. at 118.) Without a showing that Respondent’s conduct—as op- posed to some other factor such as a spate of serious, substanti- ated customer complaints—was responsible for the increased in- stance of discipline, I am not willing to assume such to be the case. Nor is there any close correlation to a spike in union activ- ity at either location, at which the Union had been certified for three years; based solely on the fact of a numerical increase, I cannot find it was caused by Respondent systematically manip- ulating its customer complaint investigation process in order to punish San Diego and Denver bargaining unit employees. Statistical proof alone may be sufficient to make out a prima facie case for disparate impact under statutes prohibiting em- ployment discrimination,14 and the Board has followed this rea- soning at least once under the guise of its “inherently destruc- tive” theory. See Aztech Electric Co., 335 NLRB 260 (2001) (citing NLRB v. Great Dane Trailers, 388 U.S. 26 (1967)). In the Aztech Electric case, however, the Board found a facially valid hiring rule (rejecting applicants whose prior wage rate met a certain threshold) to have a disparate impact on union adher- ents and therefore was sufficient under Great Dane to establish animus. Here, by contrast, there is no evidence (other than Yost’s olfactory sense) that Respondent maintained any specific standard or practice that worked to discriminate against union adherents. Indeed, there is no evidence that union adherents re- ceived customer complaint discipline in disproportionate amounts as compared to their non-adherent counterparts. Accordingly, I find that the General Counsel has failed to state a prima facie case of discrimination and recommend that the al- legation stated at ¶ 6(j) of the complaint be dismissed. E. Scheduling practices for full-time VIs [¶ 8(b)] According to the General Counsel, Respondent violated Sec- tion 8(d) of the Act in May 2016 by unilaterally modifying the CBA provision requiring that it give scheduling preference to full-time Unit employees. This action was the subject of a griev- ance filed by the Union that, as of the close of hearing, had yet to go to arbitration. 1. Facts This allegation involves the parties’ codification in their initial contract of an historical scheduling practice; accordingly, I will address the practice, the contractual language and the alleged modification: a. Respondent’s scheduling practices Since at least 2010, Respondent has used a system called “per- formance based scheduling” to create its work schedules. In practice, this process primarily involves a bid system whereby 14 See Wards Cove Packing Co., Inc. v. Antonio, 490 U.S. 642 (1989). full-time VIs, followed by flex VIs, submit preference sheets identifying the hours that they prefer to work during an upcom- ing 6-week scheduling period. Notably, flex VIs are not limited to selecting work shifts from those left unfilled by full-time em- ployees. Full-time VIs are guaranteed 32 hours per week, both under the CBA and by historical practice. Flex VIs, by contrast, get no such guarantee, but may dictate the shifts that they are willing to work. Once the employees’ preferred schedules are submitted, each center manager inputs them into a template (called a “center profile”) representing the VI shifts necessary to cover the center’s operating hours during the upcoming schedule period. The manager first “plugs in” the full-time VI’s requested schedules—in order of their performance ranking—into the tem- plate; then she plugs in flex VIs’ requested schedules into any remaining open shifts. The steps outlined above, however, do not always succeed in covering the center’s operating hours, due to the fact that, even after the requested hours for full-time and flex VIs are inputted into the schedule, there may remain “gaps,” that is, hours in the center profile for which no VI has requested to work. As man- agement witnesses testified, in order to fill these gaps, preferred hours must be shifted away from full-time VIs in reverse order of their original assignment (i.e., by assigning the lowest perfor- mance ranked full-time VI to the first “gap” period and so on). (Tr. 1201–1204, 1347, 2115–2116, 2305–2306, 2811; Jt. Exh. 1 at 9) b. The contractual language The parties’ attempted to codify this process in article 13 of the parties’ CBA, which states in relevant part: 1. Center profiles shall be posted six (6) weeks in advance of the period for which they apply. Employees may supply their manager with a preference sheet not later than one (1) week following the posting of the center profile. The preference sheet should include hours and/or days that the employee would prefer not to work, which will be considered by man- agement in composing the schedule. In accordance with Sec- tion 4 below, available hours shall be given first to full-time employees then to flex-staff who elect to be pre-scheduled. All remaining hours will be posted on Swapboard. * * * 4. Purple will schedule full-time staff interpreters following the order set forth in the Performance Based Scheduling model. A full-time interpreters ranking will be calculated using the fol- lowing performance factors: 40% Schedule Adherence; 35% Key Performance Indicators; 25% Company Seniority. Purple reserves the right to implement Performance Based Scheduling for flex-staff members prior to the opening of Swapboard. Pur- ple will provide a ranking only to those flex-staff interpreters who work greater than twenty-four (24) hours in a month. A flex-staff interpreters ranking will be calculated using the fol- lowing performance factors: 40% Schedule Adherence; 35% Key Performance Indicators; 20% Engagement; and 5% Com- pany Seniority. In the event of a tied composite score, seniority DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 will be used to determine rank. In the rare instance that tenure doesn’t resolve a tied composite score, total number of labor hours worked in the period will be used as the tie break meth- odology. * * * 6. Management will make a reasonable effort to avoid sched- uling an employee for hours and/or days that the employee has indicated on the preference sheet that he/she prefers not to work. (Jt. Exh. 1 at 11.) As noted, supra, the contract provides for final and binding arbitration of disputes over its interpretation, mean- ing or application. (Jt. Exh. 1 at 6–7.) c. The alleged contract modification Numerous full-time VIs testified that in the spring of 2016, Respondent began denying their scheduling requests at an un- precedented rate. The change was marked; multiple VIs testified that they went from consistently receiving their requested sched- ules (with only minor exceptions) to consistently being denied their requested shifts and instead assigned shifts they had indi- cated they did not want to work. Respondent’s management wit- nesses, however, testified nearly unanimously that they had not departed from their established scheduling practices.15 The fail- ure to grant full-time VIs their requested schedules, managers testified, resulted from a diminishing number of available VIs to cover shifts sufficient to fill the center profiles. Essentially, Re- spondent contends that, in order fill the “gaps” left after employ- ees’ preferred schedules were inserted into the scheduling tem- plate, it was forced to move hours away from full-time VIs to a greater extent than usual, which it was entitled to do pursuant to article 13. (Tr. 1103–1109, 2120–2121, 2131–2132, 2164–2169, 2173, 2177, 2305, 2407, 2810–2812.) 2. Analysis Changes in employee work shifts are mandatory subjects of bargaining, rendering a mid-term modification of a clear and un- ambiguous contract term regarding scheduling unlawful. Meat Cutters Local 1289 v. Jewel Tea Co., 381 U.S. 676, 691 (1995); United Cerebral Palsy of New York City, 347 NLRB 603, 607 (2006). Based on the VI testimony, it is clear that the scheduling conducted in the Spring of 2016 resulted in multiple full-time employees being denied their preferred schedules. The proper inquiry under a Section 8(d) framework, however, is whether this action was clearly and unambiguously forbidden by the contrac- tual language. In other words, it must be shown that the alleg- edly modified contract provision is “clear on its face and re- quires no construction or interpretation beyond its plain 15 The exception was Center Supervisor Kristill Brown. She, accord- ing to Yost’s unrebutted testimony, admitted that she knew that full-time VIs were unhappy with their schedules, but that her “hands were tied,” as she had been “directed to schedule that way” from “the very top.” (Tr. 2658–2659.) 16 Congress has declared labor arbitration to be the most desirable means of achieving the final binding adjustment of contract disputes when arbitration has been agreed to by the parties. See Labor Manage- ment Relations Act Sec. 203(d) (“[f]inal adjustment by a method agreed meaning.” Meilman Food Industries, Inc., 234 NLRB 698, 698 (1978), affd. 593 F.2d 1370 (D.C. Cir. 1979). By contrast, where a contractual provision is less than clear and unambiguous, the appropriate course is deferral to the par- ties’ grievance/arbitration procedure in accordance with con- gressional intent16 and the Board’s deferral policy set forth in Collyer Insulated Wire, 192 NLRB 837 (1971). In that case, the Board established the general rule that it would refrain from ad- judicating an unfair labor practice issue that arises from the par- ties’ collective-bargaining agreement if the agreement provides for arbitration as the method of resolving disputes over the mean- ing of its provisions. An issue is well-suited to arbitral resolution when “the meaning of a contract provision is at the heart of the dispute.” San Juan Bautista Medical Center, 356 NLRB 736, 737 (2011). Here, I find article 13, which indisputably controls the out- come of this allegation, is not entirely clear and unambiguous on its face. It provides that full-time VIs will be scheduled “first,” but does not guarantee that, once the scheduling process is com- plete, they will receive any or all of their requested hours. At best, it obligates Respondent to make a “reasonable effort” to avoid assigning full-time VIs shifts that they had affirmatively deselected in their submitted preference sheets. That full-time employees were denied their requested schedules does not, in it- self, demonstrate that Respondent—in light of the staffing short- fall it experienced—unreasonably assigned them shifts they had deselected. Put differently, it is possible that the Spring 2016 schedules with which full-time employees were dissatisfied nonetheless reflected Respondent’s best effort to avoid assigning them their deselected shifts. This determination, I find, is best left to an arbitrator. Based on the absence of a clear and unambiguous contract term to enforce, I find that the allegation set forth in ¶ 8(b) of the complaint should be deferred to the parties’ contractual griev- ance-arbitration procedure. E. Threat and investigation of employees involved in teaming reports [¶ 5(r), ¶ 6(c)] The General Counsel alleges that, on July 29 and August 26, Human Resources Business Partner Haraz, unilaterally and dis- criminatorily undertook an investigation into VIs involved in “teaming reports” in violation of Sections 8(a)(5) and (3). It is also alleged that, by announcing her intention to conduct such an investigation, Haraz threatened employees with unspecified re- prisals. 1. Facts During the summer of 2016, the Union requested information regarding customer complaint discipline issued to unit upon by the parties is hereby declared to be the desirable method for set- tlement of grievance disputes arising over the application or interpreta- tion of an existing collective-bargaining agreement”); see also Litton Fi- nancial Printing Division v. NLRB, 501 U.S. 190, 202 (1991) (“[a]rbitra- tors and courts are still the principal sources of contract interpretation,” and “the Board is neither the sole nor the primary source of authority in such matters”). PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 23 employees Wayne Wilson (Wilson) and Ava Sterling (Sterling). Specifically, it sought copies of “teaming reports,” on the dates on which each employee had received complaints that were the basis for discipline. Neither item is the subject of an infor- mation-request allegation; instead, Haraz’ response is alleged to have violated the Act. By way of background, “teaming” refers to the assistance pro- vided by a VI to another VI (at the latter’s request) during an especially difficult video call. That support might consist of helping to interpret, or providing emotional support for, a call involving challenging or sensitive subject matter. As Yost ex- plained, “teaming” may, in effect, provide a VI with a witness to a call with a difficult or abusive customer; he therefore made a practice of requesting teaming reports (i.e., reports describing teaming incidents) in connection with grievances over customer complaint discipline. (Tr. 1879, 2688–2689; Jt. Exhs. 91, 95.) In the case of his requests for Wilson and Sterling’s teaming reports, Haraz’ responses each stated as follows: Since the union has raised issue of teaming reports and is im- plicating that there may be other employees involved in these complaints, the employer is obligated to investigate the behav- ior of all employees in these teaming reports. According to Haraz, she believed that, by its information re- quests, the Union may have been “implying” that a different VI was responsible for the customer complaints issued Wilson and Sterling, and she wanted to ensure that Respondent fully inves- tigated the matter, so that it did not inappropriately discipline Sterling or Wilson. (Jt. Exh. 94, 95; Tr. 1703–1704.) As noted, the General Counsel also accuses Respondent of making good on Haraz’ insinuation by “investigat[ing] the be- havior of its employees represented by the Union in teaming re- ports.” By its answer, Respondent admits that it did conduct “an investigation” around the time period in question. That said, both Haraz and Stambaugh credibly denied that the investigation referred to Haraz’ email—an investigation of all employees in- volved in teaming reports—ever actually occurred. The docu- mentary evidence supports their testimony. On August 24, Op- erations Regional Manager Stambaugh emailed McBee, who, as noted, has primary responsibility for investigating customer complaints. Forwarding customer complaint files for two VIs who were grieving discipline they had received for recent com- plaints (one was Wilson, but Sterling was not mentioned), Stam- baugh asked McBee to provide her with information regarding the two underlying complaints. Specifically, she stated: You had previously helped me with investigatory information on complaints for a couple of VI’s. We have additional griev- ances and I am wondering if you can help me again with the same information for two more VI’s? Would it be possible to get information on whether the VI had a team, switched out the call or transferred the following calls and to determine if there were problem reports associated to the complaints? At hearing, Stambaugh credibly testified that her purpose in gathering this information was to assist Haraz in responding to the Union’s information requests accompanying the grievances, something she regularly did. (Tr. 1840–1841, 2715; GC Exh. 77.) Two days later, McBee responded, provided what she termed, “investigation findings” in the form of an historical digest of cus- tomer complaints lodged against each grievant, listing factual summaries and a notation indicating the type of performance is- sue involved, i.e., “call procedure,” “professional skills,” etc. The digests appear to contain a single reference to a “teaming” incident in May 2016, during which Wilson apparently received assistance from a VI identified by employee number, but there is no reference to this individual’s conduct, or that of any other non-grievant employee. Stambaugh forwarded McBee’s email, with the attachments, to Haraz, stating, “[t]his should complete the information needed from operations to respond to these grievances, please let me know if there is anything outstand- ing…” (Id.; Tr. 1840–1841, 1855–1856.) 2. Analysis Threat of unspecified reprisals: I find that Haraz’ statement that Respondent was “obligated” to investigate employees con- stituted coercion within the meaning of Section 8(a)(1) of the Act. As a preliminary matter, her claimed intent for making this statement (i.e., that she wanted to ensure that the correct em- ployee was punished for the customer complaint) is simply irrel- evant to my analysis. The test for deciding whether a statement constitutes a threat is whether it reasonably tends to coerce em- ployees in the exercise of their statutory rights. Exterior Sys- tems, 338 NLRB 677, 679 (2002); Southdown Care Center, 308 NLRB 225, 227 (1992); Swift Textiles, 242 NLRB 691, 691 fn. 2 (1979). Applying this standard here, I conclude that a reasonable em- ployee would be unlawfully coerced by Haraz’ statements. There is no question that Respondent is entitled to investigate thoroughly customer complaints, including evaluating the per- formance of all employee participants on the call in question. In- deed, because Respondent so obviously holds that prerogative, Haraz’ announcement that non-grievant employees would now be investigated was decidedly gratuitous. I believe that a reason- able VI would appreciate this and accurately assess the state- ments as an unsolicited reminder that, by electing to assist (and potentially corroborate) a coworker, he risked being blamed for a customer complaint himself. Also concerning is that Haraz couched her threat as a response to the Union’s statutorily-enti- tled search for exculpatory information furtherance of a griev- ance; identifying the Union as responsible for employees being investigated would certainly work to chill a reasonable employee in seeking the Union’s assistance with grievances and infor- mation requests. For the foregoing reasons, I find that Haraz, by her July 29 and August 26 emails, unlawfully threatened employees with un- specified reprisals, in violation of Section 8(a)(1) of the Act. 8(a)(3) and (5) allegations: Turning to the complaint allega- tions that, around the same time period of Haraz’ email, Re- spondent unilaterally and discriminatorily “investigated the be- havior of its employees represented by the Union in teaming DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 24 reports,”17 I find no merit to either allegation. As discussed above, the evidence shows that, at most, Re- spondent conducted what appears to be a standard internal inves- tigation—not for the purpose of rooting out wrongdoing by em- ployees who served as witnesses to teaming incidents, but rather to respond to grievances and accompanying information re- quests. There is simply no evidence that Respondent ever con- ducted an investigation such as the one alleged, that is, an inves- tigation into non-grievant employees mentioned in teaming re- ports. Nor is there any indication that the investigation that was conducted was spurred by animus or undertaken in contravention of past practice. As such, I find that the General Counsel has failed to make a prima facie case with respect to the remaining allegations that Respondent made good on Haraz’ threat by in- vestigating VIs involved in “teaming reports” in violation of Sec- tions 8(a)(3) and (5). I therefore recommend that the allegations set forth at ¶ 6(c) of the complaint be dismissed. G. Allegations regarding May 3, 2016 Interpreter Appreciation Day is a nationally recognized event within the interpreter community celebrated annually on May 4. In 2016, Respondent recognized this event in its call centers on the designated day by providing food, setting up banners, signs, and decorations,18 as well as holding games and activities for center employees, including puzzles and craft making. The food and craft activities were located in break rooms and on tables throughout the centers. Employees were not released from work to partake in the celebration, but rather dropped in throughout the day during their break time. A day before this event, VI- stewards held their own interpreter appreciation day celebrations at three of the unionized centers (Tempe, San Diego, and Den- ver), mainly in employee break rooms. The events were planned by the Union’s bargaining committee and funded by the Union; there is no evidence, however, that Staff Representative Yost (or any other nonemployee, union official) participated—instead, VI-stewards brought in food, signage and decorations to the call centers. Managers and supervisors at the Denver, Tempe, and San Di- ego call centers quickly became aware of the unit employees’ unofficial “Appreciation Day” celebration. Their response in- cluding monitoring and recording the event; they also alerted Haraz, who interrogated individual employees to determine who was responsible, issued a new, preapproval requirement for bringing food into break rooms and ordered the food and deco- rations removed. According to Haraz, unlike Respondent’s offi- cial celebration, the pro-union events were a “distraction” for employees. (Tr. 745–748, 837, 967–968, 2711–2712.) Numerous witnesses testified that, prior to May 3, it had been 17 Although the complaint’s syntax is somewhat confusing, as the Union does not somehow “represent . . . employees in teaming reports,” I read this paragraph to allege that Respondent investigated unit employ- ees whose names appeared in teaming reports. 18 This decor was similar to that provided for other, Respondent-spon- sored events and celebrations (i.e., winter holidays, Halloween, etc.). (Tr. 414, 705–719, 1067–1070; 1089–1091; 1142–1144; GC Exhs. 10(a), 34.) 19 Although Stambaugh testified that, on an unspecified date in the year preceding her appearance, Respondent denied an employee’s a regular practice for employees to bring food to share at the Tempe, San Diego and Denver break rooms to share. As a for- mer San Diego VI testified, “if the kitchen table was empty, we were really surprised.” Management itself sponsored events that included break-room food, such as office pot-lucks and cook-off contests. During such events, employees were allowed to come and go during their break time without disrupting others’ work. VIs also testified consistently that, prior to May 3, there was no requirement that an employee receive prior approval from man- agement before bringing in food for her coworkers. Nor could any VI recall a manager previously removing, or ordering the removal of, food from a break room, or any employee being re- ported to human resources or spoken with by management for bringing in food.19 Nor is there any evidence that, prior to May 3, any steward had been required to get “permission” before ac- cessing her call center’s non-production areas, such the em- ployee break room. (Tr. 414, 599–601, 603, 612, 615, 700–703, 840–844, 1090–1091, 1102, 1147–1148, 1156, 1259–1262, 1280, 1910, 1975–1976, 2008, 2302–2303, 2369, 2469; GC Exh. 96.) Respondent’s main defense of its supervisor and managers’ conduct is that it had a sound, arguable basis for believing that the pro-union events violated article 24 of the CBA, which re- stricts the access of union staff representatives, such as Yost. This reliance, it argues, warranted Respondent taking numerous allegedly coercive actions to enforce its rights under the contract. Before turning to the merits of the individual allegations, I will address this broad defense. As discussed, supra, article 24 gov- erns the access of union staff representatives to non-production areas of Respondent’s call centers (such as break rooms), and specifically provides that such individuals shall be allowed “rea- sonable access” to such areas “after coordinating with the Call Center Manager.” Essentially, Respondent contends that, when individual VI-stewards—without consulting with manage- ment—brought in food, signage and decorations in support of their Appreciation Day event, Respondent had a sound arguable basis for believing that their collective action amounted to a vi- olation of article 24 by the Union. Based on this rationale, Re- spondent argues that its actions on May 3 and thereafter—rang- ing from interrogations, ordering the removal of union displays and food, and promulgation of rules banning pro-union activi- ties—are excused by its good-faith effort to enforce article 24’s “consultation” requirement. (R. Br. at 82–89.) As a preliminary matter, I do not agree with Respondent’s un- supported claim that the Board recognizes a blanket defense to any unfair labor practice allegation based on an employer’s rea- sonable, good-faith application of a contractual provision.20 request to hold a baby shower in the Denver call center, I find this anec- dotal evidence, without more, too vague to be reliable. (Tr. 413, 429.) 20 The Board cases cited by Respondent address situations in which a dispute is solely one of contract interpretation, in which case the Board “will not seek to determine which of two equally plausible contract in- terpretations is correct,” and will not find a 8(a)(5) violation if the em- ployer has a “sound arguable basis for ascribing a particular meaning to his contract and his action is in accordance with the terms of the contract as he construes it.” Crest Litho, 308 NLRB 108, 110 (1992) (quoting PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 25 Respondent is alleged to have promulgated unlawful rules, made unilateral changes and discriminated against pro-union activity. With respect to the first two statutory violations, Respondent’s reliance on contractual language is irrelevant, as motive is not an element of either. With respect to the last, to the extent Respond- ent offers its good-faith application of the contract as a legitimate business defense for its actions,21 I find it wanting. The parties’ contract contains several terms regarding “stewards” and in no way requires them to gain permission before entering non-pro- duction areas, such as employee break rooms. Article 24’s “prior consultation” requirement explicitly governs the conduct of “un- ion staff representatives,” of whom none were shown to be pre- sent at a call center on May 3. Respondent essentially asks me to find that, when its manag- ers and supervisors acted that day, they believed they were law- fully enforcing on VI-stewards a contractual obligation expressly limited to higher-level union representatives. I generally found these managers and supervisors—most of who testified—to be far too intelligent to hold such a belief. This was confirmed by the notable lack of credible evidence of this supposed under- standing, as well as the failure of managers and supervisors, in reacting to the pro-union events on May 3, to contact any union official or even refer—in the various meetings held that day with stewards—to Article 24.22 Nor did Respondent apply article 24 to all stewards on May 3; as discussed infra, Haraz herself con- doned two stewards bringing in food that was not accompanied by any union materials or decorations to the Tempe call center that very day. Finally, the documentary evidence indicates that, as late as October 21, there was little consensus among management as to whether stewards were actually prohibited from bringing in food for their coworkers. On that day, in an email to upper manage- ment, San Diego Center Manager Henrik Ek reported sought ad- vice on how to handle “a Union Steward who has lately been bringing food for the employees on behalf of ASLIU.” He con- tinued: I have brought this issue up before, but never received word on how we should handle it. Ithink [Haraz] needs to talk to [Yost] to get a handle on how we should proceed since technically, it’s not the Union that’s providing the food. (GC Exh. 84.) This particularly damning evidence, along with the record as a whole, leads me to believe that Respondent’s pro- fessed belief that stewards are subject to Article 24’s preauthor- ization requirement amounts to no more than an after-the-fact rationale to explain away its conduct.23 For these reasons, I re- ject Respondent’s broad defense that it was entitled to engage in Atwood & Morrill Co., 289 NLRB 794, 795 (1988), and Vickers, Inc., 153 NLRB 561, 570 (1965)). 21 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). 22 It appears that Center Supervisor Leo told steward Proper the fol- lowing day that she believed that bringing in food and decorations vio- lated the contract, she did not specify any provision; considering the lapse of time and Leo’s relatively low supervisory status, I do not find this sufficient evidence to impute such a belief to Respondent on the day prior. (Tr. 1169.) otherwise coercive conduct because it had a “sound, arguable” basis for believing that, in doing so, it was enforcing the parties’ collective-bargaining agreement. A discussion of the individual allegations stemming from the May 3 “Appreciation Day” events follows: 1. Events in Denver [¶ 5(i)(4), (5), (6); ¶ 5(k); ¶ 5(ii)] a. Facts The Denver call center, like the other centers, consists of mul- tiple cubicle workstations (referred to as the “production floor”) in which the VIs perform their work. Outside each workstation is a small white board on which employees indicate their work hours and break times, as well as share messages with each other. The outer walls of the cubicles are decorated with work and non- work-related items, including collages, union slogans and logos, inspirational quotes and other decorations. Although VIs do not have fixed workstations, they “personalize” their work stations with rolling carts placed outside their stations. In addition to posting union slogans and logos, employees use decorations to express their union sentiments; during bargaining negotiations, and upon the ratification of the CBA, pro-union employees brought food into the break room and decorated the center with balloons. The Denver break room contains a bulletin board for union postings, as well as another board containing other, non- work materials, such as birth announcements, fundraising solic- itations, and business cards. (Tr. 414, 1067–1070, 1089–1091, 1093–1094, 1142–1144, 1148, 1155; GC Exh. 34.) On May 3, VI-steward Liz Keyser (Keyser), on behalf of the Union, brought food to work at the Denver call center for the union’s “appreciation” event. Accompanied by fellow VI- stewards Mah-rya Proper (Proper) and Sarah Spencer (Spencer), she set up a display on the break room table consisting of a spread of food backed by a white board stating, “ASL/IU Wishes You a Very Happy Interpreter Appreciation Day. Thank you for all you do.” Next to the announcement, they placed a binder containing the parties’ recently executed CBA. They also deco- rated the union bulletin board with balloons and, on the produc- tion floor, distributed balloons to individual VIs who placed them outside their cubicles. (Tr. 1061–1062, 1086–1089, 1097, 1122, 1138–1139; GC Exh. 35.) Center Supervisor Kelly Leo (Leo) learned about their actions shortly thereafter, when Keyser invited her to share food in the break room. Leo then observed individuals she described as “un- ion stewards” putting up balloons. She determined that a union event was underway and called Haraz, who instructed her to “show her” what was going on. Leo then walked down the hall- way between the VI cubicles, using her phone to “facetime”24 23 Even Haraz’ explanation for her actions appear to reflect unsuc- cessful coaching: she testified that she ordered the prounion food and displays removed, “[b]ecause, first of all, if you were to go back to look at article 24 of the collective bargaining agreement, that’s definitely in violation, but more than anything, that aside, you can’t have large—you can’t have a party in the center area when people are working.” (Tr. 204– 205.) 24 While “face timing” more commonly refers to the use of a mobile device application that enables people to communicate while simultane- ously observing each other on a video display, Leo “showed” Haraz the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 26 the VIs’ balloon display to Haraz. She was observed by Proper, who described Leo as walking down the hallway with her phone held out, face high, approximately a foot ahead of hers, appar- ently either recording or face timing with someone. According to Proper, Leo’s conduct was highly unusual in that filming or recording on the center floor was discouraged, due to the confi- dential nature of the calls being interpreted. (Tr. 1140–1141, 1493–1495.) Following her phone call with Leo, Haraz consulted with up- per management; shortly thereafter, Vice-President of Opera- tions Cummings alerted center management at the Tempe, San Diego and Oakland centers that, “apparently union stewards are decorating our centers for interpreter appreciation day.” She in- structed them that, “[i]f you have decorations from the union ap- pearing in your center, please let [Haraz] know what is happen- ing and she will provide you direction.” (Jt. Exh. 3; Tr. 263.) Back in Denver, Leo ordered VI-steward Spencer to her of- fice, where Haraz appeared via video. Haraz then asked Spencer whether she had brought in the food, and Spencer said yes. Haraz replied, “you can’t do that.” When Spencer questioned why, Haraz stated, “you cannot feed the interpreters without our permission”; she then instructed Spencer to remove the food from the break room. She next asked Spencer whether she had brought in balloons. Spencer said yes, to which Haraz re- sponded, “you need to take those down.” When Spencer ques- tioned why the balloons needed to be removed, Haraz responded that it was impermissible to have “anything out on the production floor.” Later, Leo and Proper discussed the day’s events. Proper complained about Leo reporting the food and decorations to hu- man resources, to which Leo responded that it was her responsi- bility to report union activity. (Tr. 203–206, 261–263, 966, 1097–1101, 1508–1509, 1511; Jt. Exh. 4.) Leo summarized the day’s events in an email to Stambaugh and Haraz, which Haraz in turn forwarded to upper management, including Greg Camp (Camp), Cummings, and Kim Surrency (Surrency). Days later, on May 9, Stambaugh took a picture of a union announcement posted in the Denver break room, which she sent to upper management, including Camp, Surrency, and Leo. (Tr. 1399; GC Exh. 44; Jt. Exh. 4.) b. Analysis (i) Leo “face timing” [¶ 5(k)] The General Counsel argues that, by “face timing” the pro- union call center decorations on May 3, Leo engaged in unlawful surveillance. Respondent argues that Leo’s conduct was lawful, as it amounted to no more than the observation of openly con- ducted union activity. I agree with Respondent. It is well settled that an employer’s mere observation (i.e., without recording) of openly conducted openly conducted on its employer premises will generally not be considered unlawful. See, e.g., Roadway Package System, Inc., 302 NLRB 961, 961 (1991). There is no question that the VI’s Appreciation Day events in Denver were openly conducted—indeed, Leo learned call center decorations by using the same application to transmit the im- ages at which her device was aimed. (Tr. 1495.) 25 It does appear that Leo’s conduct, as viewed by Proper, created the may have created the impression of surveillance. See CBS Records of them from VI-steward Keyser, who invited her to share in the food provided. While Leo used the Facetime application to en- able Haraz to “observe” the balloon decorations, there is no evi- dence that she additionally used this technology to photograph or record any image on May 3. As such, I find that Leo’s conduct did not amount to unlawful surveillance and recommend that ¶ 5(k) of the complaint be dismissed.25 (ii) Haraz conduct [¶ 5(i)(4), (5), (6)] The General Counsel alleges that, during her video meeting with Spencer, Haraz unlawfully interrogated her, promulgated an unlawful and discriminatory rule prohibiting union materials in the break room, and unlawfully directed Spencer to remove the union-provided food. I agree and find that Respondent, by Haraz, violated ¶ 5(i)(4), (5), and (6) of the complaint as alleged. Interrogation: The Board recognizes that the lawfulness of particular questioning must be considered under all the circum- stances and there are no particular factors “to be mechanically applied in each case.” Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd. 760 F.2d 1006 (9th Cir. 1985); Westwood Health Care Center, 330 NLRB 935, 939 (2000). That said, con- sideration may be given to the following: whether the employee is an open and active union supporter; whether there is a history of employer anti-union hostility or discrimination; the nature of the information sought (especially if it could result in action against individual employees); the position of the questioner in the company hierarchy; and the place and method of interroga- tion. See Rossmore House, supra. The Board also considers the timing of the interrogation and whether other unfair labor prac- tices were occurring or had occurred. See Vista Del Sol Healthcare, 363 NLRB No. 135, slip op. at 17 (2016). Here, the circumstances of the questioning of Proper dictate a finding of unlawful interrogation. Without explanation, she was summarily ordered to participate in a video conference with Haraz—Respondent’s highest ranking human resources offi- cial—on the very day that she had participated in the union’s “Appreciation Day” event, and shortly after Leo had appeared to video record the evidence of her actions. In addition, CEO Rae’s March/April emails and management’s broad clamp down on email use for union business (contrary to the Board’s order) am- ply establish a background of hostility against the Union. Fi- nally, Haraz’ questioning was clearly aimed to determine who was to “blame” for pro-union activity; under the circumstances, I do not find Spencer’s status as a union steward to privilege the highly coercive nature of Haraz’ questioning. See Far West Fi- bres, Inc., 331 NLRB 950, 951 (2000) (questioning aimed at de- termining an individual employee’s role in union conduct will be found to constitute unlawful interrogation). Unlawful rule: It is well established that employees’ right to engage in Section 7 conduct may not be abrogated by requiring them to obtain prior authorization before doing so. Schwan’s Home Service, 364 NLRB No. 20, slip op. at 4 (2017) (citations omitted); Saginaw Control & Engineering, Inc., 339 NLRB 541, 553 (2003) (“[t]he Board law is clear, employees do not need Division, 223 NLRB 709 (1976) (employer’s focusing closed-circuit camera on union headquarters unlawful even where no surveillance ac- tually conducted). However, this was not alleged. PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 27 [their employer’s] permission, written or otherwise, to engage in protected activities”) (citing Brunswick Corp., 282 NLRB 794, 798 (1987)). Therefore, Haraz’ pronouncement that Spencer (whom she considered responsible for the pro-union food dis- play) could not provide her coworkers food without Respond- ent’s permission, violated the Act. Moreover, the rule was clearly promulgated in response to Section 7 activity (Spencer’s lead role in the union’s Denver “appreciation day” event) and, by its terms, explicitly restricted such activity. See Lutheran Heritage Village-Livonia, 343 NLRB 646, 646–647 (2004). As such, I find that Haraz’ orally promulgated rule violated Section 8(a)(1). Finally, Haraz’ promulgating a new policy requiring manage- ment permission before allowing access to the Denver break room for union-sponsored activities violated Section 8(a)(3). Employees’ use of the employer’s premises to conduct activities protected by Section 7 of the Act is not a matter solely within their employer’s discretion, and an employer violates the Act by withdrawing permission for use of its premises for anti-union reasons. St. Joseph Med. Ctr., 276 NLRB 456, 460 (1985) (cit- ing Vulcan-Hart Corp., 248 NLRB 1197 (1980), modified in part 642 F.2d 255 (8th Cir. 1981), decision on remand 257 NLRB 979 (1981)). Based on the sequence of events and Haraz’ own conduct and actions on May 3, there is no question that her intent was to prevent union activity; Respondent’s consistent practice in otherwise allowing employees to bring in food makes it clear that she would not have announced the new “manage- ment permission” requirement absent Spencer’s protected con- duct. I also find that, by promulgating a new, preauthorization re- quirement for union-sponsored food at the Denver call center, Haraz unilaterally changed terms and conditions of employment for unit employees. Altering the terms of employees’ access to a break room is a material and significant change. See, e.g., La- tino Express, Inc., 360 NLRB 911, 920 (2014). It is clear from the record that, prior to May, unit employees regularly brought food into the break room to share and regularly used the break room as a venue for various events, including potlucks and other celebrations, without obtaining permission to do so. Haraz’ re- quirement that, in the future, Spencer gain permission before bringing in food on behalf of the Union, was presented as fait accompli, and no notice or opportunity to bargain was afforded. As such, her denial of non-approved break room access for union activities involving food violated § 8(a)(5). Order to remove food display and decorations: Employees have the presumptive right under the Act to distribute union lit- erature in employee break rooms. Cayuga Medical Center, 365 NLRB No. 170, slip op. (2017) (citations omitted). Thus, an em- ployer may not prohibit such distribution absent a showing of special circumstances that make such a prohibition necessary to maintain production or discipline. See Our Way, Inc., 268 NLRB 394 (1983); Stoddard-Quirk Mfg., 138 NLRB 615 (1962). Moreover, an employer that prohibits union literature while per- mitting employees to post about non-union activities commits unlawful discrimination, without regard to its motive. Cayuga Medical Center at Ithaca, supra (citing Honeywell, Inc., 262 NLRB 1402 (1982), enfd. 722 F.2d 405 (8th Cir. 1983); Con- tainer Corp. of America, 244 NLRB 318, 318 fn. 2 (1979), enfd. 649 F.2d 1213 (6th Cir. 1981)). Indeed, an employer that allows employees to post union literature violates the Act by removing such notices, or by encouraging its employees to do so. Id. (ci- tations omitted). In this case, Haraz ordered the removal of pro-union materials from a call center at which numerous other, non-work related materials were permitted and, in some cases, even encouraged. Most significantly, she ordered the removal of the food display set up by Spencer (along with co-stewards Keyser and Proper) which included a large whiteboard with an “Appreciation Day” message from the Union, set off by a binder containing the VIs first collective-bargaining agreement with Respondent. This or- der violated Sections 8(a)(3) and (1) of the Act, as alleged. (iii) Stambaugh conduct [¶ 5(ii)] The General Counsel alleges that, on May 9, Stambaugh en- gaged in unlawful surveillance by photographing a union flyer posted in the Denver break room. I disagree. As a general matter, employer surveillance of employees en- gaging in union activity is unlawful, regardless of whether ob- served employees are aware of it. NLRB v. Grower-Shipper Veg- etable Assn., 122 F.2d 368 (9th Cir. 1941); Bethlehem Steel Co. v. NLRB, 120 F.2d 641 (D.C. Cir. 1941). However, as discussed, supra, surveillance of openly conducted union activity, however, generally not considered unlawful. One exception to this general rule is that recording images of employees engaged in open, pub- lic union activity (absent proper justification) be found to violate the Act, specifically “because it has a tendency to intimidate” employees who—aware that a record is being made of their con- duct—will fear future discipline. F.W. Woolworth Co., 310 NLRB 1197, 1197 (1993); see also Waco, Inc., 273 NLRB 746, 747 (1984) (“[p]hotographing lawful, peaceful picketing tends to implant fear of future reprisals”) (citations omitted). In this case, however, there is no evidence that Stambaugh photographed any employee engaged in union conduct. Thus, the rationale for deeming her photography of open union conduct unlawful is absent. As such, I recommend that the allegation stated at ¶ 5(ii) of the complaint be dismissed. 2. Events in Tempe [¶ 5(l)] a. Facts In Tempe, Center Manager Jonagan responded to Cummings’ email around midday, stating that there was “no activity” at her center, but that she would report if any did occur. Haraz, who was copied on Jonagan’s email, asked Jonagan specifically whether was “any food out from the Union in the break room,” to which she responded, “no, nothing yet.” That afternoon, VI- stewards Molly Glauser (Glauser) and Michelle Caplette (Caplette) brought pizza and cookies into the center. Jonagan approached them as they arrived at the break room and said that she had been instructed to inform human resources if anyone brought in food that day. (Tr. 739, 802–803, 837–838; Jt. Exhs. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 28 3, 17)26 Glauser responded that she had purchased the food and that nobody had reimbursed her for it; she then said, “are you going to make me throw out this food I just bought with my own money?” Jonagan responded that she still had to report to human resources that someone had brought food. She then went into her office and shut the door, during which time Glauser and Caplette continued to set up the food in the break room. (Tr. 741, 804–806, 838) Jonagan next emailed Haraz, reporting that Glauser and Caplette had brought in pizza, “which they do from time to time.” She then reported that Glauser had represented that she had purchased the pizza with her own money, and that “there is no evidence of any union materials or decorations.” Copying Cummings and Camp, Haraz responded, “I’m okay with this.” Asked by the General Counsel to explain why she was “okay” with the VI’s May 3 activity at the Tempe center, as opposed to what took place at the Denver and San Diego centers, Haraz re- sponded, “I don’t know.” Jonagan testified, however, that Haraz told her that it was fine for the two stewards to bring in the food “personally themselves.” (Tr. 266–267, 744; Jt. Exh. 3; GC Exh. 5.)27 b. Analysis The General Counsel alleges that, by informing Caplette and Glauser that she was obligated to “report back” if anyone brought food that day to the center and was therefore going to report their conduct, Jonagan unlawfully created an impression of surveillance. I agree. As the Board has held, an employer violates the Act when it gives employees the impression that “members of management are peering over their shoulders, taking note of who is involved in union activities, and in what particular ways.” Fred’k Wallace & Son, Inc., 331 NLRB 914, 914 (2000). Where a supervisor indicates that he is actively monitoring employees’ open support for a union, and is doing so at the behest of upper management, he creates the impression of surveillance. See, e.g., Southern Pride Catfish, 331 NLRB 618, 622 (2000) (manager openly kept list of which employees wore union T-shirts and informed em- ployees that she was doing so at the direction of management). Such is the case here; Jonagan made clear to the two employees that she was under orders to report any food being brought in on the day the Union had unofficially declared its own “Apprecia- tion Day” for VIs. A reasonable employee in Caplette or Glauser’s shoes would certainly construe such remarks to indi- cate Respondent was wise to their participation in the event and had instructed center management to report them to upper man- agement. 26 I credit Glauser and Caplette’s testimony regarding this interaction. Jonagan (who I generally found to be a credible witness) did not deny telling the two women that she was required to report their conduct; in- stead, she claimed, rather defensively, a lack of memory about what she had said. (Tr. 745; “I don’t recall that. I don’t recall that. I’m not saying it didn’t happen, I just don’t remember, okay?”) 27 Haraz, under questioning by Respondent’s counsel, later attempted to put a “spin” on this; she stated that she relied on Jonagan’s represen- tation that the two stewards had brought in pizza in the past and that Accordingly, I find that, on May 3, 2016, Jonagan created the impression of surveillance in violation of Section 8(a)(1), as al- leged in ¶ 5(l) of the complaint. 3. Events in San Diego [¶ 5(j), ¶ 5(i)(1), (2), (3), ¶ 5(gg)] a. Facts On the morning of May 3, VI-steward Karen Boyle (Boyle) brought food to the San Diego call center and set it out in the break room, accompanied by a flyer stating: HAPPY INTERPRETER APPRECIATION DAY! Wednesday, May 4 is Interpreter Appreciation Day. Enjoy these treats, a day early, provided by: ASLIU Pacific Media Workers Guild Local 3952 ASLIU appreciates the hard work and dedication it takes to be a Video Relay Service Interpreter. Later that day, San Diego Center Manager Henrik Ek (Ek)28 dis- covered the food and sign; he took photographs of them, which he sent to Haraz “as an FYI.” Later that day, under orders from Haraz, he brought then-VI and union steward Norma Villegas (Villegas) to his office, where Haraz appeared via video. (Tr. 211, 1974, 1976–1978, 2293, 2465–2466; Jt. Exh. 5.) Haraz began the conversation by saying, “I want to talk to you about the food in the kitchen.” Some confusion ensued over whether Villegas was recording the meeting. Haraz then asked who had provided in the food and whether the Union was respon- sible. Villegas responded that she believed Boyle had brought in the food, but did not know who had paid for it. Haraz then stated, “we’re going to need you to remove the food.” Villegas stalled, questioning whether would be appropriate for her to do so; Haraz then told Villegas said that, before bringing food into the center, she was required by “policy” to get permission from Center Supervisor Brown. Villegas protested that she had never previously been required to get such permission, and the meeting ended with Haraz accusing Villegas of yelling and being aggres- sive. Apparently unconvinced that Villegas would in fact re- move the food, Haraz ordered Ek to do so. It is undisputed that, following the meeting, Ek placed the break room food out of sight in the refrigerator. (Tr. 1980–1981, 2295–2297.) I credit Villegas’ account of this meeting, which was ex- tremely detailed.29 Haraz, by contrast, offered inconsistent and therefore could be considered to have been granted prior “permission” to do so on this occasion. See Tr. 302–303. This self-serving explanation came too late, however. I instead credit her original admission that she could not explain the distinction between two individual stewards bring- ing in food and “the union” doing so. 28 Ek served as Center Supervisor from May 2015 until approximately May 2016, when he was promoted to Center Manager. (Tr. 1956.) 29 While Villegas, who worked at the San Diego call center from Au- gust 2008 until August 2016, did appear passionately supportive of the PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 29 inherently unreliable testimony regarding the meeting, first claiming no memory of having met with Villegas on the day in question and then recalling Villegas being highly aggressive and disrespectful during the meeting, while being unable to remem- ber what was discussed. Compare Tr. 267–269 with Tr. 1598– 1599. b. Analysis The General Counsel alleges that Ek’s actions on May 3 con- stituted unlawful surveillance (photographing the break room display) and discrimination in violation of Section 8(a)(3) (re- moving food from the break room). It is further alleged that Haraz, during her video conference with Villegas, committed several independent violations of section 8(a)(1), as well as ad- verse actions in violation of Section 8(a)(3). (i) Ek’s conduct [¶ 5(j), ¶ 5(gg)] Break room photography: It is undisputed that, upon discov- ering Boyle’s pro-union display in the break room, Ek photo- graphed it and sent it to his superiors. The General Counsel ar- gues that Ek’s conduct constituted unlawful surveillance. I dis- agree. For the same reasons stated above with respect to Stam- baugh’s conduct on May 9, I find that Ek’s photography of openly conducted union activity, but not the image of any em- ployee partaking in it, does not violate the Act.30 As such, I rec- ommend that ¶ 5(gg) of the complaint be dismissed. Removing union-provided food: I agree with the General Counsel that, by removing the food included in Boyle’s pro-un- ion display and placing it out of sight in the break room refriger- ator, Ek violated Section 8(a)(1). Notably, the display reminded VIs that they were about to experience their first “Interpreter Ap- preciation Day” as union-represented employees of Respondent. Ek’s countermeasure—removing the union-provided food—tel- egraphed to unit employees that their bargaining representative could not even provide them a snack without Respondent’s per- mission. Thus, inasmuch as the food display acted as a “state- ment” by the Union, Respondent’s excising it from the break room table violated Section 8(a)(1) of the Act. See Intertape Polymer Corp., 360 NLRB 957, 958 (2014) (removal of union literature from break room following filing of representation pe- tition violates the Act) (citation omitted). Moreover, Ek’s act of confiscating food provided by the Un- ion, in light of Respondent’s regular custom and practice of per- mitting employees to share food on an individual basis, was un- lawfully discriminatory in violation of Section 8(a)(3). Cooper Health Systems, 327 NLRB 1158, 1164 (1999); Bon Marche, 308 NLRB 184, 199 (1992); see also Norton Concrete Company of Longview, Inc., 249 NLRB 1270, 1276 (1981) (where em- ployer’s change of policy coincides with employees’ union ac- tivities, an inference is warranted that the change was discrimi- natorily motivated). Accordingly, I find that, on May 3, 2016, Respondent, by Ek, violated Sections 8(a)(3) and (1) of the Act by removing union- provided food from the break room as alleged in ¶ 5(j) of the Union (and correspondingly critical of Respondent), she was not argu- mentative or evasive on cross examination and generally appeared to make an effort to testify accurately and without exaggeration. (Tr. 2285, 2288) complaint. (ii) Haraz’ conduct The General Counsel alleges that, by her conduct described above, Haraz engaged in numerous instances of conduct alleged as independent violations of Section 8(a)(1) as well as adverse actions in violation of Section 8(a)(3). Interrogation: First, it is alleged that, by asking Villegas who had brought in the food and whether the Union was responsible, Haraz unlawfully interrogated her. I agree. Once again, Haraz’ rank and the “corner office” setting of this inquiry, combined with the nature of the information she sought, rendered her ques- tioning coercive. Her first query sought to determine who was to blame for the apparent misdeed of bringing in the food, im- plicitly suggesting that such an individual could be subject to negative consequences for doing so. Bozzutos, Inc., 365 NLRB No. 146, slip op. at 1 (2017) (coercive quality of questioning es- pecially high where nature of information sought could result in action against individual employees). Her further attempt to de- termine whether the Union was involved likewise aimed at to discover protected conduct. See Far West Fibres, Inc., 331 NLRB at 951 (employer’s questioning to determine whether un- ion was responsible for food provided to employees amounted to unlawful interrogation). Unlawful rule: By telling Villegas that she was not allowed to provide food to the San Diego VIs without Respondent’s per- mission, Haraz committed additional unfair labor practices. As noted, it is well established that employees’ right to engage in Section 7 conduct may not be abrogated by requiring them to obtain prior authorization before doing so. See Schwan’s Home Service, 364 NLRB No. 20, slip op. at 4; In re Saginaw Control and Engineering, Inc., 339 NLRB at 553. Moreover, Haraz’ rule was clearly promulgated in response to Section 7 activity (the pro-union display) and, by its terms, explicitly restricted such ac- tivity. See Lutheran Heritage Village-Livonia, 343 NLRB at 646–647. As such, I find that Haraz’ orally promulgated rule violated Section 8(a)(1). I also find that, by promulgating a new, preauthorization re- quirement for union-sponsored food at the San Diego call center, Haraz unilaterally changed terms and conditions of employment for unit employees. See Latino Express, Inc., 360 NLRB at 920. It is clear from the record that, prior to May, Respondent’s em- ployees regularly used the break room as a venue for various events, including potlucks and other celebrations. Haraz’ re- quirement that, in the future, Villegas gain permission before bringing in food was presented as fait accompli, and no notice or opportunity to bargain was afforded. This was a violation of Re- spondent’s duty to bargain under Section 8(a)(5). Finally, by promulgating a new policy requiring management permission before allowing access to the San Diego break room for union-sponsored activities, Haraz violated Section 8(a)(3). See Vulcan-Hart Corp., supra. Based on the sequence of events and Haraz’ own conduct and actions on May 3, there is no ques- tion that her intent was to prevent union activity; Respondent’s 30 I reach the same conclusion with respect to the allegation set forth at complaint ¶ 5(jj), and therefore recommend that this allegation be dis- missed. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 30 consistent practice in allowing employees to bring in food on an individual basis unrelated to the union makes it clear that she would not have announced the new “management permission” requirement absent its accompanying pro-union display. Order to remove union-provided food: For the same reasons that Ek’s removal of Boyle’s pro-union food display in Denver constituted a coercive and discriminatory act (see supra), Haraz’ order that Villegas do so likewise violates Sections 8(a)(3) and (1). See also Kolkka Tables, 335 NLRB 844, 849 (2001) (un- lawful to order employee to remove union stickers from his toolbox); St. Luke’s Hospital, 314 NLRB 434, 494 (1994) (un- lawful to direct employees to remove prounion insignia from their uniforms). Accordingly, I find that, on May 3, 2016, Respondent, by Haraz violated Sections 8(a)(1) of the Act by unlawfully interro- gating Villegas as alleged in ¶ 5(i)(1) of the complaint, violated Sections 8(a)(3) and (1) of the Act by ordering the removal of union-provided food from the break room as alleged in ¶ 5(i)(3) of the complaint, and violated Sections 8(a)(3), (5) and (1) of the Act by requiring management permission for union-provided break room food as alleged in ¶ 5(i)(2) of the complaint. 4. Haraz May 4 emailed rules [¶ 5(m)] The General Counsel alleges that, the day following the Un- ion’s “Appreciation Day” events, Haraz unilaterally promul- gated, via an email, four overly broad and discriminatory rules. Once again, Respondent’s defense is based on its professed be- lief that article 24 of the CBA governed the conduct of em- ployee-stewards. a. Facts Upon learning of Respondent’s reaction to the employees’ “Appreciation Day” conduct, Yost emailed Haraz. Referring to the VIs regular past practice of bringing in food to share without securing “permission,” he demanded that Haraz explain why she had ordered that the union-provided food be removed. The fol- lowing day, Haraz responded to Yost as follows: There would not have been an issue if this was simply a sharing of food during the employee’s meal period. The Union did not seek authorization to create this ‘celebration.’ As we advised the Union steward, all of the balloons and other paraphernalia needed to be removed from the working areas.31 While we do allow personal effects to be displayed in employee work areas, we do not allow other types of solicitation in such work areas. Small symbols of Union loyalty have been allowed in desig- nated areas; however, larger displays are not acceptable and open the door to people choosing all kinds of reasons to post celebratory balloons, streamers, etc. . . . We are not discontinuing any celebratory practice. We simply are asking that the Union seek authorization for its actions in the workplace so that we can agree upon reasonable limitations on what should or should not be displayed throughout the work environment. 31 This was an apparent reference to Haraz’ directive to Spencer re- garding the balloon decorations in the Denver call center. 32 While there was testimony regarding the need for certain portions of VI workstations (i.e., those appearing on camera during video (Jt. Exh. 6.) There is no evidence in the record that special cir- cumstances, such as discipline or productivity, were relied on in promulgating the restriction on employees’ display of union loy- alty to “small symbols. . . in designated areas.”32 b. Analysis As a preliminary matter, I do not find any merit to Respond- ent’s claim that, by her email, Haraz was simply attempting to enforce the CBA’s access provision. The email, on its face, con- stitutes Respondent’s declaration of permissible versus non-per- missible pro-union conduct in the workplace, and makes no men- tion of the CBA or Respondent’s professed contractual entitle- ment under its article 24 to have shut down the prior day’s pro- union activities. As I have previously noted, I found Haraz’ tes- timonial efforts to “integrate” Respondent’s claimed reliance on article 24 into her version of the facts unpersuasive; that she made no effort to explain the conspicuous absence of any refer- ence to it in this particular missive is further proof that Respond- ent’s “article 24” defense lacks merit. Because her statements are alleged to violate multiple provi- sions of the Act, I will analyze them as potential Section 8(a)(5), (3) and (1) violations, in turn: 8(a)(1) analysis: I agree with the General Counsel that several portions of Haraz’ email constitute coercive statements in vio- lation of Section 8(a)(1). They are as follows: (i) “While we do allow personal effects to be displayed in em- ployee work areas, we do not allow other types of solicitation in such work areas” It is well settled that, while an employer may lawfully ban so- licitation in working areas during working time, such a ban may not be extended to working areas during nonworking time. Food Services of America, Inc., 360 NLRB 1012, 1018 (2017). Haraz’ pronouncement bars employees from engaging in the protected activity of union solicitation in work areas during non-working time, such as during breaks and lunch periods. The Board has found that the promulgation and maintenance of such restrictions to be a per se violation of Section 8(a)(1). See, e.g., Mercury Marine-Division of Brunswick Corp., 282 NLRB 794, 794–795 (1987). (ii) “Small symbols of Union loyalty have been allowed in des- ignated areas; however, larger displays are not acceptable” Haraz’ announced restrictions on employees’ display of union symbols by size and venue additionally violate the Act. Both the Board and Supreme Court have held that employees have the right to display union insignia while at work, and it is well settled that an employer violates Section 8(a)(1) when, absent special circumstances, it prohibits employees from doing so. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801–803 (1945); In-N- Out Burger, Inc., 365 NLRB No. 39, slip op. at 6 (2017); Boch Honda, 362 NLRB 706 (2015), enfd. sub nom. Boch Honda v. NLRB, 826 F.3d 558 (1st Cir. 2016) (citing Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801–803 (1945)); P.S.K. interpreting) to be free from clutter, Respondent’s workplace-wide ban on “non-small” displays of union loyalty was not tailored to apply to such areas. PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 31 Supermarkets, Inc., 349 NLRB 34, 34 (2007); Ohio Masonic Home, 205 NLRB 357, 357 (1973), enfd. mem. 511 F.2d 527 (6th Cir. 1975). As Respondent has failed to demonstrate that any “special circumstances” justify limiting employees’ pro-un- ion displays to “small symbols . . . in designated areas,” the re- strictions Haraz announced violate the Act. (iii) “We simply are asking that the Union seek authorization for its actions in the workplace” As noted, supra, an employer abrogates its employees’ right to engage in Section 7 conduct by requiring them to obtain prior authorization before doing so. See Enterprise Products Co., 265 NLRB 544, 554 (1982) (finding unlawful rule requiring employ- ees to secure employer’s permission as precondition to engaging in protected concerted activity on employee’s free time and in non-work areas). While Haraz’ syntax suggests that Respondent was merely “requesting” that the Union obtain Respondent’s permission before engaging in activity on Respondent’s prop- erty, given the larger context, it is clear that she was in fact reit- erating her pronouncements of the day prior, when she had in- formed individual stewards that they were prohibited from providing food to their coworkers without Respondent’s permis- sion. The question is whether a reasonable employee would in- terpret Haraz’ “request” addressed to Yost as an order to that ef- fect. I find that it would. As the Supreme Court and Board have recognized, determina- tion of whether an employer’s statement violates Section 8(a)(1) “must be made in the context of its labor relations setting” and “take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disin- terested ear.” NLRB v. Gissel Packing Co., 395 U.S. 575, 580 (1969). As such, the Board does not require that a statement ex- plicitly mandate conduct; telling employees, for example, “you don’t need to go to the authorities,” has been found to be reason- ably construed by employees as an affirmative order not to do so. See Murray American Energy, 366 NLRB No. 80, slip op. at 13 (2018) (citing Radisson Plaza Minneapolis, 307 NLRB 94 (1992), enfd. 987 F.2d 1376 (8th Cir. 1993)). In this case, Haraz unlawfully shut down union-sponsored events in San Diego and Denver, interrogated employees about their involvement in those events and made sure that employees knew their participation in such events was being monitored. By following her actions with a pronouncement that the Union was required to seek authorization for “its actions” in the workplace, Haraz deliberately conflated the Union’s own conduct and pro- union actions taken by individual unit employees. This tele- graphed to employees that any pro-union action they wished to take (for example, engaging in a pro-union “button day”) would require the Union to seek prior authorization. I find Haraz’ highly coercive message violated the Act. 8(a)(3) analysis: There is no question that Haraz’ email was promulgated in response to the unit employees’ protected Appre- ciation Day activities the day prior and Yost’s effort to hold Re- spondent to account for its unfair labor practices. As discussed, supra, I do not credit Respondent’s explanation that, by her email, she merely sought to enforce the contract’s union-access provision. As Respondent has offered no other, legitimate busi- ness reason for Haraz’ restrictions on protected conduct in the workplace, I find that her pronouncements violated Section 8(a)(3). See Vulcan-Hart Corp., 248 NLRB 1197 (1980), (em- ployer’s withdrawal of permission to conduct union activities on its premises for retaliatory reasons violates the Act). 8(a)(5) analysis: It is undisputed that Haraz presented her emailed rules as a fait accompli, affording the Union no notice or opportunity to bargain. However, for a violation of Section 8(a)(5) to be found, her pronouncements must also be found to have altered the status quo. I find that her complete ban on so- licitation constituted a change in the status quo in that it deviated from Respondent’s own handbook solicitation policy, which only prohibited solicitation during “working time.” Moreover, her prior authorization requirement for the Union’s “actions in the workplace” and her ban on “larger” pro-union displays marked a change from Respondent’s prior tolerance of such dis- plays, even in employee work areas. I therefore find that her email violated Section 8(a)(5) as alleged. H. Additional restrictions on call center union activity during the Summer of 2016 1. Denver [¶ 5(o); ¶ 5(p)] a. Facts On June 6 (approximately a month following the events sur- rounding Interpreter Appreciation Day), VI-steward Proper placed strawberries on one of the tables in the Denver break room, along with a note that said, “Happy Monday from ASL/IU.” Veith noticed the berries, and, because of the pro-un- ion sign that accompanied them, reported the incident to her su- pervisor, Stambaugh. (Tr. 1148, 1258–1259.) Two days later, Veith sent the following email to VI-steward Keyser: Hey Liz! First, I want to say thank you for taking the time to recognize the VR as interpreters Monday. The strawberries were a sweet and fresh idea. Second, I want to be sure we are both on the same page. It’s really important to me to honor the CBA, and by extension re- spect all the VI’s who choose to work in a Union Center. Ar- ticle 24 of the CBA says “Union staff representative(s) shall be allowed reasonable access to non-production areas of call cen- ters covered by this agreement after coordinating with the Call Center Manager.” The key words for me are “after coordinat- ing with the Call Center Manager.” Moving forward, please be sure to connect with me about any treats or other efforts for the VIs beforehand. (Jt. Exh. 9) Keyser responded with an email indicating that she read article 24 very differently and wanted to meet with Veith and Proper to get “on the same page.” Id. Veith responded, in- dicating she had no authority to negotiate over the topic and ex- pected Proper to comply with the “clear boundary” she had set. Id. On approximately June 15, Proper and Veith did, in fact, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 32 discuss the strawberries incident. During the discussion, Proper tried unsuccessfully to convince Veith that article 24 did not ap- ply to her, because she was not a “Union staff representative”; Veith maintained that the crux of the article was that Proper was not to “bring in things without coordinating with the Center Manager and having her approval.” When Proper continued to disagree, Veith ended the conversation, stating that she was fol- lowing her understanding of the contract and any disagreement would have to be worked out at a higher level. (Tr. 1151–1152.) b. Analysis The General Counsel argues that, by her June 8 and 15 emails, Veith unilaterally promulgated, and Respondent has since main- tained, two overly-broad and discriminatory rules: one requiring stewards to give management prior notice before bringing in “any treats or other efforts for the VIs” and another specifically requiring Proper to obtain Veith’s approval before bringing “things” into the Denver call center. I agree. Notably, Veith’s email stands as the first-time management explicitly cited article 24 as the rationale for restricting stewards’ union activity. Merely inserting text from the CBA into her email, however, does not sanitize Veith’s unlawful rules, which are far broader in scope than the contract’s union-access provi- sion, even assuming it applied. I therefore find that, by her edicts, Veith continued Respondent’s attack on pro-union dis- plays, in violation of Sections 8(a)(3) and (1).33 Moreover, inas- much as Respondent had previously condoned VIs bringing food to the Denver call center to share with each other, Veith’s pro- nouncements—presented as a fait accompli—changed terms and conditions of unit employees they additionally violated Section 8(a)(5) as alleged. 2. San Diego [¶ 5(kk), ¶ 5(hh)] a. Facts On August 17, Boyle posted a union flyer on the union bulle- tin board above a box of doughnuts in the San Diego break room. On top of the lid to the doughnut box, she handwrote, “Look— something new from ASLIU” with arrows pointing up towards the flyer. (Tr. 2470–2472.) Ek discovered the doughnuts and flyer; as he had in May, he photographed the display and sent his photographs to Haraz and Stambaugh. After consulting with Stambaugh, he then sent Boyle an email strikingly similar to Veith’s email to Proper two months earlier: First, I want to say thank you for taking the time to recognize the VRS interpreters today! The donuts were a sweet idea. Second, I want to be sure we are both on the same page. It’s really important to me to honor the CBA, and by extension re- spect all the VI’s who choose to work in a Union center. Arti- cle 24 of the CBA says “Union staff representative(s) shall be allowed reasonable access to non-production areas of call cen- ters covered by this Agreement after coordinating with the Call Center Manager.” The key words for me are “after 33 The coercive nature of preauthorization requirements has been dis- cussed several times throughout this opinion, and the same reasoning ap- plies here. coordinating with the Call Center Manager.” Moving forward, please be sure to connect with me about any treats or other ef- forts for the VI’s beforehand. Ek admitted that, other than this email, he had never directed any other VI to provide prior notice before bringing any “treats or other efforts” for their coworkers. The following day, Boyle re- sponded to Ek’s email, disputing that article 24 applied to her, as she was not “Union staff” but was merely an employee of Re- spondent. (GC Exh. 100; Jt. Exh. 10; Tr. 1999–2002, 2473.) There is no indication in the record that Ek responded to this email. b. Analysis The General Counsel alleges that Ek’s photography consti- tuted unlawful surveillance. Because there is no evidence that his recordation included the image of any employee (see § G.1.b(iii), supra), I disagree and therefore recommend that ¶ 5(kk) of the complaint be dismissed. With respect to the rule requiring stewards to contact him before bringing in any “treats” or “other efforts” for employees, I find that it violates the Act on the same rationale as did Veith’s June 8 and 15 emails. I. RULES REGARDING TEMPE EMPLOYEE BREAK ROOM Employees generally testified that it was common for them to leave non-work related materials in the Tempe break room, in- cluding solicitations for various items, including Girl Scout cookies, chocolate bars and, as Caplette testified, “candles, lots of candles.”34 When Sonoma Fragassi (Fragassi) began as Act- ing Center Manager in 2016, she specifically asked Operations General Manager Stambaugh whether a donation box for a fund- raiser was permitted in the break room and was told that it was. Caplette testified that she also regularly left union announce- ments on the tables in the break room, as well as on the union bulletin board. It is undisputed that historically, no prior permis- sion was required to leave reading material in the break room. Nor is there any credible evidence that—prior to November 14— management ever removed union literature from the break room. (Tr. 354–355, 357, 490–491, 496, 890, 889, 898–899.) 1. Fragassi November 14 rule [¶ 5(z)(1), ¶ 5(aa)] The General Counsel alleges several violations based on a sin- gle order given by then-Tempe Center Manager Fragassi. Spe- cifically, she is alleged to have directed VI-steward Caplette to remove union flyers from the center’s break room. Fragassi tes- tified that Caplette was an active and vocal union steward, who frequently questioned her authority as a manager and brought an “excessive” number of (sometimes illegitimate) complaints on behalf of her coworkers. (Tr. 527, 531.) As background, Respondent maintains a non-solicitation/non- distribution policy which states: Employees of Purple may not solicit or distribute literature dur- ing “working time” for any purpose. Employees of the 34 This is consistent with testimony by VIs working in other call cen- ters, who testified that it was not uncommon for VIs to sell items such items via a sign-up sheet in those centers’ break rooms. (Tr. 601, 613, 809–811, 2476.) PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 33 Company may not distribute literature in “working areas” at any time for any purpose. Working time includes the working time of both the employee doing the soliciting or distributing and the employee to whom the soliciting or distributing is being directed. Working time does not include meal periods, or any other specific periods during the workday when employees are properly not engaged in performing their work assignments. (Jt. Exhs. 100; GC Exh. 2 at 32.) According to Haraz, “working areas” under the policy does not cover employee break rooms. (Tr. 292.) a. Facts On November 14, VI-steward Caplette arrived early for her shift in order to post an announcement from the Union titled, “Pacific Media Workers Guild Complaint and Notice of Hear- ing.” She posted this document on the union bulletin board in the employee break room and additionally placed copies on the tables in the break room. Fragassi discovered the flyers and brought them to the attention of Stambaugh,35 who directed Fragassi to remove them. During her lunch break later that day, Caplette stuck her head in Fragassi’s office to chat. At the end of their conversation, Fragassi informed Caplette that she had been directed to ask her to remove the announcements from the tables in the break room. Caplette responded that she would not do so, because she believed she was entitled to leave union ma- terials in the break room pursuant to a prior NLRB settlement. (Tr. 354, 470–472, 477, 872, 874–876; GC Exh. 11.)36 At some point during the day, Fragassi removed the flyers, except for the one posted on the union bulletin board. On the day in question, there were other nonwork-related items left in the break room—a pizza advertisement and some magazines— that she left in place. Caplette testified that, following this inci- dent, she contacted Haraz, who admitted that, pursuant to the prior settlement, the Union was permitted to place announce- ments in the break room and that they should not have been touched. (Tr. 478–481, 534, 876–880; 886–887; GC Exh. 23.) b. Analysis The General Counsel alleges that, by relaying the order that Caplette remove the union announcement from the tables in the break room, Fragassi violated both Sections 8(a)(1) and (3) by creating, in effect, two overly broad and discriminatory rules: one prohibiting its employees from placing union-related mate- rials in the break room,37 and another requiring union stewards, such as Caplette, to remove such materials. It is also alleged that both aspects of her order violated Section 8(a)(3), in that they constituted a selective enforcement of Respondent’s above-ref- erenced non-solicitation policy. Finally, the General Counsel 35 It is undisputed that this was the first time that Fragassi had ever reported to Stambaugh the fact that materials had been left in the break room. (Tr. 419.) 36 I credit Caplette’s version of this conversation, which was quite detailed, rather that of Fragassi, who related a convoluted version of events in which she never tried to get Caplette to remove the fliers. She appeared particularly uncomfortable during this part of her testimony, leading me to believe she was attempting to ‘edit’ herself out of incident. (Tr. 482–483.) argues that, by resorting to removing the flyers herself, Fragassi violated Sections 8(a)(3) and (1) of the Act. With respect to her relaying the order to remove the announce- ments, I find, on the same authority discussed, supra, with re- spect to Haraz’ order to remove balloons from the San Diego call center, that Fragassi’s conduct violated Sections 8(a)(3) and (1). Likewise, her removal of the announcements, like Ek’s act of confiscating food from the San Diego break room, in light of Re- spondent’s past custom and practice of permitting employees to leave various non-business, non-union related literature in the break room, was unlawfully discriminatory in violation of Sec- tion 8(a)(3). (See cases cited supra at § G.3.b(i).) I also find that, disparately applying Respondent’s no-solicitation policy, Fragassi additionally violated the Act. See Pay’N Save Corp., 247 NLRB 1346 (1980), enfd. 641 F.2d 697 (9th Cir. 1981). Finally, because Respondent—pursuant to a Board settlement agreement—had a prior practice of allowing union announce- ments on its break room tables and abruptly changed this prac- tice, Fragassi’s rules banning union materials and requirement that employee-stewards remove such materials additionally con- stituted an unlawful unilateral change in violation of Section 8(a)(5), as alleged. See Latino Express, Inc., 360 NLRB at 920. 2. Fragassi March 9, 2017 rule [¶ 5(cc)] a. Facts On March 9, 2017, Caplette again came to work early to place union materials in the break room. Once again, she posted one copy on the bulletin board and left additional copies on the break room table. That afternoon, Fragassi discovered the flyers, rec- ognized them as union announcements and removed them from the table.38 Later, when Caplette arrived at the break room to eat lunch, she noticed that the table announcements were gone. Caplette confronted Fragassi, stating that she had left announce- ments on the table and that they were allowed to be there. Fragassi insisted that the announcements were not allowed to be anywhere in the break room except on the union bulletin board. Later that day, Fragassi reported what had happened to Stam- baugh, who (after consulting with Haraz), instructed Fragassi to return the fliers to the break room, which she did. Fragassi tes- tified that, after she returned the fliers, Caplette stopped by her office and acknowledged that she had done so. (Tr. 389, 484– 485, 487–490, 509–512, 890–892; GC Exh. 13.) b. Analysis In light of Respondent’s past custom and practice of permit- ting employees to leave various non-business, non-union related literature in the break room, Fragassi’s removal of the union an- nouncements—like Ek’s removal of union-provided food—was both coercive in violation of Section 8(a)(1) and unlawfully 37 This portion of the “rule” is also alleged as an unlawful unilateral change. 38 Fragassi testified that she discovered only a single copy of the an- nouncement on the table, which she then posted on the union bulletin board, although there was already a copy posted there. I do not credit this testimony, which was awkward and halting; it appeared to be another effort by Fragassi to ‘sanitize’ the facts. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 34 discriminatory in violation of Section 8(a)(3). (See cases cited supra at § G.3.b(i)) Likewise, her directive that union materials were not allowed in the break room (except on the bulletin board) violated Sections 8(a)(1) and (3), as did her prior ban on such items. (See cases cited supra at § G.1.b(ii)) Finally, in light of Respondent’s prior practice, as admitted by Haraz, of allowing union announcements on its break room tables, Fragassi’s ban on union materials constituted an unlawful unilateral change in violation of Section 8(a)(5). See Latino Express, Inc., supra. Nor do I find that Fragassi’s actions in returning the fliers in effect remedied any unfair labor practices pursuant to Passavant Memorial Area Hospital. See 237 NLRB 138 (1978). To meet the Board’s standard in this regard, a repudiation must, at a min- imum, be “timely,” “unambiguous,” “specific in nature to the co- ercive conduct,” and “free from other proscribed illegal con- duct.” Murray American Energy, 366 NLRB No. 80, slip op. at 11 fn. 13 (citing cases and discussing additional requirements for effective repudiation). Suffice to say that, other than being “timely,” Fragassi’s conduct in replacing the union announce- ments wholly failed to meet the Board’s standard. 3. March 23, 2017 rule [¶ 5(dd)] The General Counsel alleges that, at the Tempe call center since about March 23, 2017, Respondent has maintained overly- broad and discriminatory rules (a) prohibiting employees from leaving materials related to the Union anywhere except on the Union bulletin board at the Tempe call center; and (b) requiring its employees to notify Respondent in advance and secure au- thorization before leaving materials related to the Union unat- tended in that center’s break room. In support of this allegation, the General Counsel relies on af- fidavit statements made by Stambaugh to the effect that Re- spondent “has a practice of keeping break rooms at its centers clear of clutter” and further that “managers remove materials that are left unattended in the break room unless [it] has been notified about those material and authorized them to be left unattended.” (GC Exh. 7) There is no evidence, however, that any employee was made aware of this “practice” ; as such, even to the extent it may constitute a reliable admission against interest, I agree with Respondent that it was not shown to have been communicated to any employee or maintained as a rule governing employee con- duct. Accordingly, I recommend that ¶ 5(dd) of the complaint be dismissed. J. Miscellaneous independent 8(a)(1) allegations 1. Jonagan January 7 disparagement [¶ 5(h)] The General Counsel alleges that, in January 2016, Jonagan unlawfully disparaged the Union in violation of Section 8(a)(1), by telling employees that their discipline was due to the parties’ CBA.39 39 This conduct is also alleged as a unilateral change in violation of Sec. 8(a)(5). 40 The only employee witness who offered similar testimony was for- mer VI Molly Glauser (Glauser), who testified that, at some point be- tween January 2016 and May 2017, Jonagan issued her a discipline and said that she “personally” would not have done so, because her a. Facts In support of this allegation, the General Counsel relies on the testimony of former Center Manager Jonagan, who testified that, at some point after July 2015, she referenced the parties’ newly negotiated CBA in issuing disciplinary actions to VIs. As Jona- gan testified, these situations arose when she was required to fol- low the contract and therefore issued discipline for what she had previously considered de minimis performance lapses. On these occasions, she informed the employee in question that her “hands were tied” and that she was required to follow the con- tract. Contrary to the General Counsel’s characterization, how- ever, I do not believe that Jonagan admitted to telling a particular VI that she was being disciplined because of the parties’ con- tract; Jonagan was generally credible, and my impression was that, under 611(c) examination, she became confused by the questioning but ultimately denied doing so. (Tr. 759–762.) 40 b. Analysis An employer unlawfully disparages a union, in violation of Section 8(a)(1), by taking adverse action against its employees and falsely blaming that action on the union. See Webco Indus- tries, Inc., 327 NLRB 172, 173 (1998) (employer violated Sec- tion 8(a)(1) by telling employees that union was responsible for its unlawful discipline of employees). The rationale for finding such statements coercive is straight forward: blaming the union for discipline telegraphs to employees that “union representation results in damage to their terms and conditions of employment.” Id. In this case, the General Counsel has failed to establish that Jonagan “blamed” the Union for any particular discipline. To the extent that the record indicates that she told employees that she was required to follow the contract, this was a truthful state- ment and not one casting any particular aspersion on the Union. Because the General Counsel did not establish that Jonagan spe- cifically blamed a specific disciplinary action on the Union, I do not find that she unlawfully disparaged the Union or otherwise violated the Act as alleged. I therefore recommend that the alle- gation set forth in ¶ 5(h) of the complaint be dismissed. 2. Stambaugh May 2016 disparagement [¶ 5(n)] a. Facts The General Counsel alleges that, in a May conversation with then-VI Mary Jane Moore (Moore), Stambaugh unlawfully dis- paraged the Union. According to Moore, the conversation took place in the Tempe call center in May or June of 2016.41 The two women, who al- ready knew each other, had a frank discussion in which Moore complained about Respondent’s minimum productivity require- ments for VIs. In response, Stambaugh indicated that the re- quirements had been negotiated with the Union. When Moore underperformance was minimal. (Tr. 811–813.) I found this testimony far too vague to be credited. 41 Stambaugh worked at the Tempe location during the summer, cov- ering for then-Center Manager Jonagan, who was on leave. (Tr. 405, 538.) PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 35 suggested that the unit employees had not wanted such require- ments in the contract, Stambaugh responded, “the Union hasn’t done anything for you.” (Tr. 544–547.)42 b. Analysis It is well established that an employer that engages in a plan of denigrating or disparaging a union with the goal of undermin- ing employee support for the union violates Section 8(a)(1) of the Act. See, e.g., Regency House of Wallingford, Inc., 356 NLRB 563, 575 (2011) (citing Davis Electric Wallingford Corp., 318 NLRB 375 (1995); Albert Einstein Medical Center, 316 NLRB 1040 (1995); J.L.M., Inc., 312 NLRB 304 (1993)). Words of disparagement alone concerning a union, its officials or supporters are insufficient for finding a violation of Section 8(a)(1). Sears Roebuck Co., 305 NLRB 193 (1991). In this case, I find that Stambaugh’s comment rose beyond mere words of disparagement; she suggested to Moore that the contract the Un- ion had negotiated for the unit had not improved her working conditions. By doing so, she denigrated the Union in a manner that impugned its representational abilities and implicitly threat- ened that continued representation by the Union would be futile. Such a comment violates the Act. See Regency House of Wall- ingford, Inc., 356 NLRB at 567–568. 3. Thrasher May through November 2016 conduct [¶ 5(y), 5(jj), 5(ll)] Tera Thrasher (Thrasher) worked as a center supervisor at the San Diego call center from early July 2016 through the end of that year. Previously, she had worked as a VI at the center, dur- ing which time she was friendly with another San Diego VI, Hannah Mattix (Mattix), with whom she discussed the Union from time to time. (Tr. 1727–1728.) On November 1, VI Delia D’Angelo (D’Angelo) observed what she recognized to be Thrasher’s “Facebook” page open on a shared work computer. (Tr. 2057–2058.) D’Angelo took nu- merous pictures of the computer screen, which showed messages between Thrasher and Mattix. While the precise dates of each part of their messages is unclear, based on the record as a whole, I find that they were in fact were sent and received by Mattix and then-supervisor Thrasher, beginning in August 2016.43 The ex- changes consist of three conversations, each of which I will ad- dress in turn. a. Exchange #1 (union literature) [¶ 5(y)(3), ¶ 5(y)(4) and ¶ 5(y)(5)] The first exchange concerned union literature: MATTIX THRASHER The union sent around some 42 I credit Moore’s version of the conversation. I note that she was an especially credible witness, who even took care to correct a minor, inconsequential misstatement in her testimony before leaving the stand. (Tr. 556.) Stambaugh, by contrast, was defensive when questioned by counsel for the General Counsel and gave somewhat rehearsed testimony when questioned by Respondent’s counsel. Most significantly, she did not deny the conversation in question, but instead categorically denied ever telling “employees” in the Tempe call center that “the union had not done anything for them.” (Tr. 405.) statement about the firings. It was so poorly written and filled with such political rhetoric *eye roll Was it on orange paper? What did the paper say? No, it was the usual white paper with the logo, it cov- ered something about a me- diation that had happened back in april I’ll send you a picture, is that legal? what do you mean legal? I mean I can send you, as my manager, a copy, right? Ya you can send me whatever you want Sweet! I will show it to the peeps above me but I will not tell them where I got it (GC Exh. 74.) b. Analysis The General Counsel alleges that, during this exchange, Thrasher unlawfully interrogated Mattix (i.e., “what did the pa- per say?”), solicited her to report on the union activities of her coworkers (by inviting her to forward her the union literature they discussed) and gave Thrasher the impression of surveillance (by showing interest in the literature). Interrogation: It is well settled that interrogations do not per se violate Section 8(a)(1). “To fall within the ambit of Section 8(a)(1), either the words themselves or the context in which they are used must suggest an element of coercion or interfer- ence.” Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1267 (7th Cir. 1980), and cited cases. Where an employee, such as Mattix, has already made her anti-union views known, the po- tential for her to be restrained or coerced would appear, at first blush, to be less likely. That said, Section 7 necessarily protects an employee’s right to choose the degree to which she wishes to express support for, or opposition to, union representation. See, e.g., Gonzales Packing Co., 304 NLRB 805, 816 (1991) (super- visor violated 8(a)(1) by approaching employees, some of whom had previously voiced antiunion sentiments, and asking them to wear ‘Vote No’ buttons). The question in this case is whether Thrasher, by pressing 43 Thrasher initially admitted to sending the messages at issue, but later attempted to disavow certain of them, positing that perhaps some- one else could have sent them posing as her. Respondent, however, pro- vided no evidence to support such a theory. Current employee Mattix, who was visibly uncomfortable during her testimony, appeared to feign a lack of specific recollection regarding the exchange. Based on her overall demeanor, I cannot credit her lack of memory as to whether she participated in the documented conversation. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 36 Mattix to disclose the contents of the union literature, was in- quiring into a level of detail that Mattix had not voluntarily dis- closed. I find that she did. Mattix started the conversation by reporting that she had seen a “statement” by the Union and then making fun of its quality and tone. Thrasher’s point-blank re- sponse—“what did it say?”—certainly demanded more infor- mation than Mattix had offered. Indeed, Mattix’ concern over the propriety of showing Thrasher a copy of the statement indi- cates that she had not previously shared such information with her. As such, I find that Thrasher’s inquiry pressing for the con- tents of the union literature constituted an unlawful interrogation. Solicitation to surveil coworkers: I additionally find that, by giving Mattix “permission” to forward the union statement (which she promised to relay to upper management), and further- more by encouraging her to send her “whatever” she wanted, Thrasher unlawfully solicited Mattix to report on the union ac- tivities of her coworkers. While Thrasher did not explicitly refer to information regarding union activity, this was hardly neces- sary, considering that was the very subject they were discussing. See T-West Sales & Service, Inc., 346 NLRB 118 (2005) (unlaw- ful solicitation to ask employees to report if they heard anything about union organizing); Maple Grove Health Care Center, 330 NLRB 775, 784 (2000) (unlawful solicitation to ask employee if he had heard anything about union organizing and if he would tell him if he had). Impression of surveillance: “Soliciting employees to report on the union activity of others necessarily creates the impression of unlawful surveillance and is violative of Section 8(a)(1).” In re MTR Sheet Metal, Inc., 337 NLRB 713 (2002) (telling employee to “keep his eye” on a coworker creates impression of surveil- lance) (citing Ishikawa Gasket America, Inc., 337 NLRB 175 (2001)). As such, I find that, by soliciting Mattix to send her evidence of her coworkers’ union conduct, Thrasher unlawfully created the impression of surveillance as alleged. c. Exchange #2 (union statement) [¶ 5(y)(6), ¶ 5(y)(8)] Following their first conversation, Mattix did in fact email Thrasher a union flyer which she, in turn, forwarded to upper management three days later (without disclosing Mattix as the source).44 The two women then had another Facebook message exchange, which included a discussion about the flyer: MATTIX THRASHER Right????? It was spectacularly whining and self gratifying Instead of saying “After re- warding bad behavior for too long, the employees finally got their just recompense.” I agree! AND wayne and 44 I base this finding on Mattix’ reference in this conversation to the specific phrase, “all the discipline meted out,” which is mentioned in the flyer she admittedly sent Thrasher. 45 According to Thrasher, “Wayne” and “Robert” were San Diego VIs who she overheard making anti-union remarks during the time she had worked as a VI at that call center. (Tr. 1750–1751.) robert45 were talking about how much they hated the un- ion and they blamed the un- ion for the contract in the46 [illegible] and they are trying to use scare tactects [sic] to get peo- ple on their side It makes me sad And why are they passing out info while at work any- ways??? The discipline type, self monitoring, the ridiculous wording “which is just about all the discipline meted out… I thought that wasn’t allowed?? Unless Karen was off the clock. It is not allowed to conduct union business on work place property And she used the printer too ugh… Wish I could have caught her (Tr. 2145, 2470–2471; GC Exh. 73, 74.) d. Analysis The General Counsel alleges that Thrasher’s reference to “Wayne” and “Robert” created the impression of surveillance of employees’ union sentiments. It is further alleged that her state- ment about conducting union business on “work place property” constitutes an overly broad and discriminatory work rule, as well as a violation of Section 8(a)(3) of the Act. Finally, it is alleged Thrasher’s expressed regret at not having “caught” an employee violating that rule constituted a threat of unspecified reprisals for using Respondent’s printer for union activities. Impression of surveillance: The Board has found that the im- pression of surveillance is created where an employer tells em- ployees that it is aware of their union activities, but fails to tell them the source of that information. North Hills Office Services, 346 NLRB 1099, 1103 (2006). The coercive quality of such an ‘unsourced’ statement is based on its tendency to cause employ- ees “to speculate as to how the employer obtained its infor- mation, causing them reasonably to conclude that the infor- mation was obtained through employer monitoring.” Id. Here, the record establishes that Thrasher informed Mattix that she knew that two San Diego VI’s had complained about the Union. I do not find, however, that the General Counsel has 46 D’Angelo’s photograph of this portion of the exchange cut off mid- sentence, leaving it unclear whether Thrasher disclosed how she had learned of the two employees’ sentiments about the Union. PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 37 demonstrated that her statement qualified as the type tending to cause an employee to speculate that it was obtained through em- ployer monitoring. The record indicates that Thrasher actually learned, before she was promoted, that the employees in question were opposed to the Union, something that she may have made clear in the portion of her email message that was not introduced into evidence. Under the circumstances, I cannot assume that Thrasher made an ‘unsourced’ statement of knowledge about employees’ union sentiments of the type that would create an impression of surveillance. Accordingly, I recommend that complaint paragraph 5(y)(6) be dismissed. Overly broad/discriminatory rule: Directives prohibiting em- ployees from conducting union business anywhere on workplace property, such as the rule advanced in Thrasher’s directive to Mattix, are unlawfully overbroad. Brunswick Corp., 282 NLRB at 795.47 Moreover, inasmuch as her pronouncement was a di- rect response to Mattix’ report that employees had been “passing out” union literature at work, it constitutes a discriminatory pro- hibition. Finally, because the record demonstrates that em- ployee-stewards regularly conducted union business, such as Weingarten representation, “on work place property,” Thrasher’s directive constitutes an unlawful unilateral change— presented as a fait accompli—to employees’ working conditions. Accordingly, I find that, by directing that employees were for- bidden to conduct union business anywhere “on work place property,” Thrasher violated Sections 8(a)(1), (3) and (5) as al- leged in the complaint. Threat of unspecified reprisals: In assessing an alleged threat, the Board uses an objective standard: whether the statement would tend to coerce a reasonable employee. Hendrickson USA, LLC, 366 NLRB No. 7, slip op. at 5 (2018). The language of the alleged statement does not need to be explicit to make it a threat, and if so, is assessed in the totality of circumstances. Id. In this case, Thrasher’s expressed regret at not having “caught” an em- ployee conducting union business at work clearly signaled that she intended to punish such conduct and therefore constitutes a threat of unspecified reprisals. e. Exchange 3 (referral to NLRB) [¶ 5(y)(1), (2)] In the third conversation, Mattix inquires about conditions at the call center where Thresher then worked: MATTIX THRASHER How’s the atmosphere there? Not as much union here lol National labor relations 47 I disagree with Respondent that Thrasher’s statement to Mattix was not an unlawful rule; it was not a piece of “advice” to Mattix, but rather a blanket statement that employees (such as the one to whom she re- ferred) were forbidden from conducting any union business at work. Cf. Food Services of America, Inc., 360 NLRB 1012, 1016 fn. 11 (2014) (no unlawful rule based on supervisor advising employee to stay away from recently discharged employee). 48 The complaint contains an allegation that, during their Facebook conversations, Thrasher promised Mattix benefits (see ¶ 5(y)(9)); the rec- ord, however, contains no evidence in support of this allegation. Accord- ingly, I recommend that it be dismissed. The General Counsel also board is a good way to check out how to deunionize (GC Exh. 74.) f. Analysis The General Counsel alleges that Thrasher’s comment amounts to unlawful assistance to employees in helping reject a collective-bargaining representative. (See ¶ 5(y)(1), (2).) I dis- agree. While it is clear that Thrasher referred Mattix to the Board for information about decertifying the Union, this alone does not amount to unlawful assistance. An employer may lawfully pro- vide neutral information to employees regarding their right to withdraw their union support, provided that the employer offers no assistance, makes no attempt to monitor whether employees do so, and does not create an atmosphere “wherein employees would tend to feel peril in refraining from [withdrawing].” Mo- hawk Industries, 334 NLRB 1170, 1170–1171 (2001) (quot- ing Vestal Nursing Center, 328 NLRB 87, 101 (1999)); see also Lee Lumber & Bldg. Material, 306 NLRB 408, 410 (1992) (man- ager “did not unlawfully provide assistance by advising the em- ployees, in general terms, about how to file the [decertification] petition”). In this instance, I do not find that Thrasher’s referring Mattix—who had already expressed her anti-union sentiments— to the appropriate government agency for information on decer- tification did not create an atmosphere in which a reasonable em- ployee in Mattix place would fear retribution for not pursuing decertification. Accordingly, I recommend that the complaint allegations at ¶ 5(y)(1), (2) be dismissed.48 K. Respondent’s handbook rules49 The Board has long recognized that work rules, to the extent they touch upon protected Section 7 conduct, have the potential to chill employees in their exercise of rights guaranteed by the Act. The coercive effect of some rules is obvious; a rule will be found unlawful, for example, if it explicitly restricts Section 7 conduct. Moreover, even a facially neutral rule is unlawful where it: (a) was promulgated in response Section 7-protected conduct; or (b) has been applied to restrict the exercise of Section 7 rights. Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). Finally, facially neutral rules not promulgated in re- sponse to, or applied to restrict, protected activities may none- theless be found coercive and therefore unlawful where they, “when reasonably interpreted, would potentially interfere with Section 7 rights.” Boeing Co., 365 NLRB No. 154, slip op. at 4 (2017). Until recently, Board precedent dictated that the lawfulness of this third category of should turn on whether an employee would alleges at complaint ¶ 5(ll), that Thrasher unlawfully surveilled employ- ees’ union conduct on October 21, 2016, by taking pictures of donuts that VI-steward Boyle had brought for employees and e-mailed them to Haraz and Stambaugh. (See Jt. Exh. 77) I recommend this allegation be dismissed, as it is another example of recording of openly conducted un- ion activity sans employees. 49 On December 19, 2017, the General Counsel moved to withdraw the rule alleged in ¶ 5(ff) of the complaint, as well as portions of the rules alleged in ¶ 5(a) and ¶ 5(e) of the complaint. That unopposed motion is granted. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 38 reasonably understand the rule in question to prohibit Section 7- protected conduct, taking into consideration the “surrounding circumstances” of which such an employee would be aware.50 Following the hearing in this case, however, a majority of the Board rejected this standard, adopting instead a new, modified test for such rules. In the Board’s recent Boeing decision, which dealt with a ban on employee photography and video in the workplace, the majority stated that henceforth, it would explic- itly balance the employer’s proffered business justification for a rule against the “nature and extent” of its “potential impact on “NLRA rights.” 365 NLRB No. 154, slip op. at 4, 7 (2017). In applying its new test, the Board stated, it intends to take into ac- count “different industries and work settings” as well as “specific events that may warrant a conclusion that particular justifications outweigh a potential future impact on some type of NLRA- protected activity.” Id., slip op. at 2. Notably, application of the Board’s new test is not required to find a rule unlawful where it is shown to either (a) explicitly restrict Section 7 conduct; (b) have been promulgated in response Section 7-protected conduct; or (b) have been applied to restrict the exercise of Section 7 rights. In this case, the General Counsel alleges that Respondent has promulgated, maintained and/or enforced several unlawful em- ployee handbook rules, each of which is addressed below. At hearing, Respondent stipulated that it has maintained each of the challenged rules in its nationwide employee handbook (the hand- book), that is made available to employees via its intranet site. It is also undisputed that Respondent requires its employees to sign an “Acknowledgement of Receipt of the Employee Handbook” stating that they understand and agree with the rules contained therein. (Jt. Exh. 24; Tr. 288–289.) 1. “Confidential” disciplinary action reports [¶ 5(g)] CGC alleges that Respondent unlawfully labels as “Confiden- tial” its employees’ Disciplinary Action Reports (i.e., the forms Respondent uses to document employee discipline), in violation of Section 8(a)(1). a. Facts At hearing, the parties stipulated that, “[s]ince at least January 1, 2016, the Disciplinary Action Report that Purple has requested employees sign contains the word ‘Confidential.’” (Jt. Exh. 99, 100.) Indeed, the disciplinary form is itself captioned in bold, capital letters, “CONFIDENTIAL DISCIPLINARY ACTION REPORT.” (See Jt. Exh. 99, Exh. A.) b. Analysis Discipline constitutes an “undeniably significant” term of em- ployment. Westside Community Mental Health Center, 327 NLRB 661, 666 (1999). The Board recognizes employees’ cor- respondingly important Section 7 right to discuss the circum- stances of their discipline with each other. Verizon Wireless, 349 NLRB 640, 658 (2007) (“[i]t is important that employees be 50 See, e.g., Cellco Partnership d/b/a Verizon Wireless, 365 NLRB No. 38, slip op. at 1 fn. 2 (2017); Roomstores of Phoenix, LLC, 357 NLRB 1690, 1690 fn. 3 (2011). 51 Nor do I agree with Respondent’s contention that its confidential demarcation is shielded from liability because it is somehow ambiguous. permitted to communicate the circumstances of their discipline to their co-workers so that their colleagues are aware of the na- ture of discipline being imposed, how they might avoid such dis- cipline, and matters which could be raised in their own de- fense”). That said, a restriction on employee discussion of dis- cipline may, under appropriate circumstances, be lawful. The test is whether, under the circumstances, employees’ interests in discussing their discipline “outweigh” their employer’s “asserted legitimate and substantial business justifications.” Boeing Co., 365 NLRB No. 154, slip op. at 10 (citing Caesar’s Palace, 336 NLRB at 272; Jeannette Corp. v. NLRB, 532 F.2d 916 (3d Cir. 1976)). Accordingly, an employer violates Section 8(a)(1) when it prohibits employees from speaking with coworkers about disci- pline, absent a legitimate and substantial business justification for doing so. See Carney Hospital, 350 NLRB 627, 644 (2007); see also Lucky Cab Co., 360 NLRB No. 43, slip op. at 7 (2014); SNE Enterprises, 347 NLRB 472, 491–492 (2006); Cae- sar’s Palace, supra. In this case, by captioning every discipli- nary notice as “confidential,” Respondent clearly imparts to its employees that the contents of such reports are not to be dis- cussed, period. I also find that the forms would be reasonably construed by employees to constitute a prohibition on any dis- cussion of the circumstances of their discipline. See Philips Electronics North America, 361 NLRB No. 16, slip op. at 3 (2014) (even in the absence of a written policy, an employer vi- olates the Act by maintaining language in disciplinary notice that, reasonably construed, constitutes a prohibition on employ- ees’ discussing their discipline). Against this common-sense interpretation, Respondent argues that a reasonable employee, rather than feel constrained by being issued a “confidential” discipline, would reasonably assume the designation, rather than constrain his own communications, to offer him the benevolent protection of safeguarding his disci- pline from disclosure by “Purple personnel or others.” Such an employee would presumably believe that Respondent was guar- anteeing to never disclose the contents of any disciplinary notice (for example, in defense of a grievance, Board charge or unem- ployment claim). Frankly, this is a bridge too far. Instead, I find that a reasonable employee—having been handed a document labeled “CONFIDENTIAL DISCIPLINARY ACTION REPORT”—would logically understand that the subject of his discipline was to be kept under wraps.51 The question remains whether Respondent’s incursion of Sec- tion 7 rights is justified by business necessity. I find that it is not. Respondent’s confidentiality rule is not tailored to address privacy and safety issues that might warrant curtailing discussion during specific investigation of alleged employee wrongdoing, nor did Respondent present any evidence of any such business justification for its ban on discussing discipline. Rather, by its post-hearing brief, it categorically claims—without supporting record evidence—that it faces potential liability for failing to In the context of a disciplinary notice, a designation of “CONFIDENTIAL” means one thing: “don’t tell anyone about this dis- cipline.” PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 39 secure its employees’ disciplinary information from disclosure “by its managers and other employees who learn the information in confidence.” (R. Br. at 143.) Purely speculative, after-the- fact concerns over confidentiality cannot justify divesting em- ployees of their essential and protected right to discuss their dis- cipline with each other. I therefore find that Respondent has failed to articulate or establish a substantial business justification for its significant constraint on its employees’ Section 7 rights. Accordingly, I find that Respondent has violated Section 8(a)(1) of the Act by labeling employee disciplinary notices as confidential. 2. Confidentiality of personnel files [¶ 5(e), [¶ 5(f)] a. Facts At hearing, the parties stipulated that, since at least Sep- tember 29, 2016, Respondent Purple has maintained the follow- ing policy in its handbook: (1) EMPLOYMENT RECORDS Purple maintains a personnel file for each employee. The file includes confidential information such as your job application, resume, documentation of performance appraisals and salary increases, and other employment records. You have a right to inspect certain documents in your personnel file, as provided by law, in the presence of a Human Resources representative at a mutually convenient time. No copies of documents in your file may be made, with the exception of documents that you have previously signed. You may add your comments to any disputed item in the file. Respondent’s employee handbook, at least in the context of em- ployee’s use of electronic communications, specifically warns that: All employees are expected and required to protect the Com- pany’s trade secrets and other confidential information. Com- pany trade secrets or confidential information should never be transmitted or forwarded to outside individuals or companies not authorized to receive the information. (Jt. Exh. 24 at 9, 30–31; GC Exh. 2 at 9, 31.) b. Analysis The Board has long held that a prohibition on employees’ dis- closure of personnel information, including their salary infor- mation, violates the Act. Such was the case under the now-de- funct first prong of Lutheran Heritage, discussed supra, see Flex Frac Logistics, LLC, 358 NLRB 1131, 1132 (2012), enfd. 746 F.3d 205 (5th Cir. 2014), as well as cases decided prior to Lu- theran Heritage. See, e.g., Heck’s, Inc., 293 NLRB 1111, 1119 (1997) (handbook “request” that employees not discuss wages unlawful where employer “failed to establish any business justi- fication for this restraint”) (citing Scientific-Atlanta, Inc., 278 NLRB 622, 625 (1986); Waco, Inc., 273 NLRB 746 (1984)). In applying the Board’s new, Boeing “balancing test” to the rule at hand, my first task is to evaluate its potential impact on 52 To the extent that Respondent argues that its policy merely seeks to protect its documentation of salary increases, I doubt this interpreta- tion would leap to the mind of a reasonable employee-reader; indeed, employees’ Section 7 rights. On its face, the rule does not ex- plicitly bar employees from discussing their salary information with each other, or with third parties. It does, however, charac- terize salary increases “and other employment records” as “con- fidential.” The question is whether, read in conjunction with the handbook’s stated expectation that employees not share confi- dential information with “outside individuals,” the rule would be reasonably construed as a prohibition on sharing salary infor- mation or “other employment records” for Section 7 purposes (i.e., disclosing such information to a Board agent or Department of Labor investigator). I find that it would. Wages are “probably the most critical element in employ- ment.” Scientific-Atlanta, Inc., 278 NLRB at 625 (unlawful to bar employee discussions regarding pay increases); see also Aroostook County Regional Ophthalmology Center, 317 NLRB 218, 220 (1995) (employee discussions regarding wages, the core of Section 7 rights, are “the grist on which concerted activ- ity feeds”) (citing Jeannette Corporation v. NLRB, 532 F.2d 916, 919 (3d Cir. 1976), enfd. in part 81 F.3d 209 (D.C. Cir. 1996). As such, Respondent’s effort to prevent employees from discuss- ing their salary is a clear and direct attack on a core right guar- anteed by the Act.52 Nonetheless, I must balance this incursion with Respondent’s proffered business justification. I find the latter vastly out- weighed by the former. While Respondent professes an interest in protecting its employees’ “highly sensitive and private infor- mation,” it is a given in modern-day workplaces that, whether by custom or legal obligation, employers protect such information from third parties, this cannot justify a wholesale ban on employ- ees’ discussing their own wages. See Waco, Inc., 273 NLRB 746, 748 (1984) (absent a legitimate and substantial business jus- tification, rule prohibiting employees from discussing their wages is unlawful); see also Blue Cross-Blue Shield of Alabama, 225 NLRB 1217, 1219–1220 (1976) (handbook rule stating “[s]alary information is confidential and should not be dis- cussed” unlawful on its face) (citing Jeannette Corporation v. NLRB, supra)). In a related allegation, the General Counsel alleges that Re- spondent additionally violated the Act by requiring that employ- ees sign an acknowledgement form stating that they agree with and understand the handbook containing this rule. At hearing, the parties stipulated that this was the case. (Jt. Exh. 99, 100.) Contrary to the General Counsel’s allegation, I can find no Board authority for the proposition that an employer violates the Act by requiring its employees to acknowledge and agree to the provi- sions of an employee handbook later found to contain an unlaw- ful rule. Work rules are one-sided demands of employee conduct that carry an implicit (and oftentimes explicit) threat of discipline for noncompliance; by promulgating an unlawful rule, an em- ployer creates a standing chill on its employees’ Section 7 rights. I do not believe, however, that a reasonable employee would per- ceive a heightened chill as a result of being required to sign a standard acknowledgement form for a handbook containing such a single, unlawful rule, along with dozens of other, lawful rules. absent evidence that Respondent seeks to protect some nonsubstantive aspect of a documentary record of a salary increase (a confidential font, perhaps?), this explanation simply does not hold water. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 40 I therefore recommend that this allegation, set forth at ¶ 5(f) of the complaint be dismissed. L. Weingarten and related violations It is well settled that Section 7 guarantees an employee the right to be accompanied and assisted by a union representative at an “investigatory” interview, that is, one which an employee would reasonably believe may result in disciplinary action. NLRB v. Weingarten, 420 U.S. 251, 260 (1975). Recognizing this employee right to representation—now commonly referred to as the “Weingarten right”—effectuates the Act’s stated pur- pose of eliminating the “inequality of bargaining power between employees . . . and employers.” Id. at 262. As the Supreme Court has explained: [a] single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investi- gated, or too ignorant to raise extenuating factors. A knowl- edgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview. Id. at 262–263. The Court cautioned, however, that Weingarten rights are not intended to displace “legitimate employer prerogatives” in effec- tuating workplace discipline, which may include proceeding to discipline absent any interview.53 Less clear, under Weingarten, is the extent to which an employer, having granted an em- ployee’s request for a representative, may legitimately set boundaries and limitations on that representative’s role during the investigatory interview. In this regard, the Supreme Court directs that a balance be struck between employer and employee interests; this directive has been applied by the Board, with court approval, to mean that an employer may insist on hearing the employee’s own account of the matter under investigation, but that the employee’s representative must nonetheless be permit- ted to take an active role in assisting the employee to present the facts. NLRB v. Texaco, Inc., 659 F.2d 124, 125–127 (9th Cir. 1981); United States Postal Service, 288 NLRB 864, 867 (1988) (the “[p]ermissible extent of participation of representatives in interviews . . . lie[s] somewhere between mandatory silence and adversarial confrontation”). In this case, the General Counsel alleges that, on several oc- casions, Haraz and Veith denied unit employees the effective representation of their designated Weingarten representatives by unlawfully limiting their participation in investigatory inter- views, and additionally promulgated unlawful restrictions on the 53 Under the Weingarten framework, an employer may not be com- pelled to proceed with an investigatory meeting once a representative has been requested. Instead, the employer may deny the request, forcing the employee facing discipline to choose between proceeding with the inter- view unaccompanied or foregoing it altogether, along with its potential benefits. 420 U.S. at 258 (citing Mobil Oil Corp., 196 NLRB 1052, 1052 (1972)). role of Weingarten representatives in future interviews. By way of background, the parties’ CBA provides that, in the event of an investigatory interview, “[t]he manager conducting such an in- terview must notify the employee in advance of the nature of the meeting.” (Jt. Exh. 1.) 1. Veith conduct Veith is alleged to have violated the Weingarten rights of three employees and additionally to have promulgated several overly broad and discriminatory rules regarding Union representatives’ conduct during investigatory meetings. a. Espinoza interrogation on June 17 [¶ 5(q)] The General Counsel alleges that, on June 17, Respondent, by Veith, denied the request by employee Karly Espinoza (Espi- noza) for Weingarten representation. Respondent claims that the meeting in question was not investigatory in nature. (i) Facts Espinoza, who currently works as a VI for Purple in Denver, was summoned by her direct supervisor, Veith, to attend a meet- ing in her office. Once she had entered the office, Espinoza told Veith, “one moment. Let me grab [steward Proper].”54 Veith responded that they were just going to have “a discussion” and that the presence of a steward was not “appropriate.” Veith then presented Espinoza with customer complaints and asked if she had anything to say about them. Espinoza, who had previously received a verbal “coaching” about prior customer complaints, read the new complaints, stated “this seems like an investigatory meeting and I have a right to have a steward.” She again asked if she could go and get Proper. Again, Veith responded, “we’re just having a discussion. This isn’t investigatory.” The two women proceeded to discuss the customer com- plaints, with Espinoza attempting to explain her conduct with re- spect to each individual complaint. At the end of the meeting, Veith told Espinoza that she felt her personal life was negatively affecting her performance and suggested that she step down to part-time employment or reduce her hours.55 On June 24, Espi- noza received a discipline based on the customer complaints dis- cussed during the June 17 meeting. (Tr. 1301, 2076–2081; Jt. Exh. 45, 56.) (ii) Analysis As noted, Respondent claims that this meeting amounted to no more than an informal “coaching” session which did not trig- ger any right to a representative. I disagree. Espinoza was asked to defend her work performance in the face of customer com- plaints lodged against her; certainly a reasonable employee in her position (having already received a “coaching” about her inter- actions with customers) would have cause to believe that her an- swers could impact whether the new complaints would lead to 54 According to Espinoza, Proper was in fact available at the time. (Tr. 2083–2084.) 55 I base my factual findings regarding this meeting on Espinoza’s testimony. I found her plainspoken and not prone to exaggeration; in addition, I note she recited a very detailed discussion of the individual complaints she discussed with Veith during the meeting. Veith, by con- trast, testified that she didn’t recall “anything about that meeting.” (Tr. 1300–1301, 2078–2079.) PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 41 further discipline. As such, Espinoza was entitled to request a Weingarten representative. She twice did so, only to be in- formed by Veith each time that the meeting was not investiga- tory. Significantly, Veith did not in fact deny Espinoza’s request, which she validly could have done (thereby forcing Espinoza to choose whether to proceed alone in the face of potential disci- pline). Instead, Veith affirmatively misled Espinoza into believ- ing that the meeting could not lead to discipline, thereby coercing her into participating in an investigatory meeting without repre- sentation.56 Such conduct violates the Act. See Las Palmas Med. Ctr., 358 NLRB 460, 469 (2012) (“because the employer first determines whether to permit union representation, it must bear the risk for falsely characterizing the nature of the inter- view…[a]ny contrary finding would violate public policy by al- lowing a supervisor’s deception to defeat a union employee’s Weingarten rights”). Accordingly, I find that Respondent, by Veith, violated that Act by interrogating Espinoza on June 17, as alleged in ¶ 5(q) of the complaint. b. Espinoza interrogation on January 4, 2017 [¶ 5(bb)] The General Counsel alleges that, on January 4, Veith again denied Espinoza’s request for Weingarten representation. (i) Facts On January 4, 2017, Espinoza met with Veith and Leo. At the meeting’s outset, Veith stated that Leo was only present for the purpose of taking notes. Espinoza responded by asking if she could have a notetaker, but Veith said no. Espinoza then asked if she could record the meeting, to which Veith again said no. Espinoza next requested to have either a union representative or another employee present. Veith responded that she was not en- titled to representation, because it was a “disciplinary meeting.” Veith then presented Espinoza with a disciplinary notice. (Tr. 1339, 1341, 2087–2097.)57 (ii) Analysis I agree with Respondent that Espinoza was not entitled to a Weingarten representative for this discussion. It is well estab- lished that, for Weingarten rights to attach to an interview, dis- cipline must ‘hang in the balance’; if the employee’s disciplinary outcome is not dependent on the interview in question, there is no right to a representative. Baton Rouge Water Works, Co., 246 NLRB 995, 997 (1979) (no right to representative at meeting “held solely for the purpose of informing the employee of, and acting upon, a previously made disciplinary decision”). Because 56 Contrary to Respondent’s assertion, I find that Espinoza, acting in good faith on Veith’s misrepresentation, did not waive her Weingarten rights. See Southwestern Bell Telephone Co., 227 NLRB 1223 (1977) (“[b]efore inferring that a waiver has occurred . . . the Board must assure itself that the employee acted knowingly and voluntarily”). 57 I do not credit Espinoza’s testimony that, during this meeting, she was asked to defend herself or that she and Veith discussed the com- plaints underlying the discipline. Her recollection of the details of this meeting was far less impressive than that of the June 17 meeting; rather than recalling the specifics of this meeting, she simply offered, “I feel like any time on called in that office I’m defending myself or something.” (Tr. 2097–2098.) the record establishes that Veith met with Espinoza for the sole purpose of presenting her with previously drafted disciplinary notice and asked her no questions, the interview was not “inves- tigatory” and no right to representation attached. I therefore recommend dismissal of ¶ 5(bb) of the complaint. c. Mayer interrogation on October 10 [¶ 5(u)] The General Counsel alleges that, on October 10, Veith effec- tively denied the request by employee Jody Mayer (Mayer) for Weingarten representation by ordering her representative, VI- steward Proper, to remain silent during an investigatory inter- view. (i) Facts In October 2016, current employee Mayer worked as a VI in Denver, when she was ordered to attend a meeting with Veith. Veith informed Mayer that the purpose of the meeting was to discuss her “customer contact/conversation percentage,” a term with which Mayer was unfamiliar. Veith additionally informed her that she was entitled to union representation at the meeting. (Tr. 1156, 1382, 1388; GC Exh. 50.) The meeting took place on October 10, with VI-steward Proper in attendance as Mayer’s representative. Veith opened the meeting by stating that they were going to discuss Mayer’s failure to meet a minimum “utilization” requirement.58 At this point, Proper attempted to question Mayer about an extenuating circumstance that may have caused her under-performance, but Veith interrupted and said that the circumstance did not apply. Veith then asked Mayer to explain why her “session efficiency” was low during two specific work shifts; Proper interjected in an attempt to make sure that Mayer understood the meaning of that term before she answered. Veith told Proper to stop interrupting, at which point Proper “kind of shut down” while Mayer at- tempted to explain her performance. As the meeting wrapped up, Veith and Proper disputed what time it was, for purposes of Proper accounting for her union time; as Proper explained, she tried unsuccessfully to convince Veith that she should get credit for time spent returning to her workstation. At the meeting’s end, Veith told Proper, “this meeting’s over, honey.” (Tr. 1156– 1159, 1161, 1165, 1310–1311, 1357; Jt. Exh. 51.) I have based my findings regarding this meeting on the testi- mony of Proper as partially corroborated by both Veith and Mayer, although I note that Mayer’s testimony was less reliable in that she claimed to recall only “the tone of the meeting,” as opposed to the specifics.59 Veith, for her part, admitted to telling Proper that she wanted to speak with Mayer “without interrup- tion.” (Tr. 1324.)60 58 Utilization refers to the amount of time a VI is connected to both parties on a call; it is required that individual interpreters rate within 3 percent of their peers for utilization at 3 different times of day. (Tr. 1157– 1158.) 59 I do not find that Mayer was deliberately evasive in her testimony, but rather that her recollection was impaired by her highly agitated state during the meeting. (Tr. 1392–1395.) 60 I do not credit Veith’s attempt to “clean up” this admission by add- ing that she also told Proper to “please” hold her questions until “the end” or, alternately, when she was done speaking; nor do I suggest that such statements would themselves have been lawful. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 42 (ii) Analysis The General Counsel argues that, by telling Proper to “stop interrupting,” Veith effectively denied Mayer the assistance and counsel of her chosen Weingarten representative.61 I agree. Serving as an employee’s Weingarten representative is a form of protected union activity. Murtis Taylor Human Services Sys- tems, 360 NLRB 546, 547 (2014); Corrections Corp. of Amer- ica, 347 NLRB 632, 636 (2006). While as noted, supra, this rep- resentational right must be balanced against the employer’s le- gitimate need to investigate employee misconduct, a Weingarten representative may not be made to act as a passive observer, even temporarily, during the interview. Texaco, Inc., 251 NLRB 633, 643 (1980), enfd. 659 F.2d 124 (9th Cir. 1981); Lockheed Martin Astronautics, 330 NLRB 422, 430 (2000). In keeping with an employee’s right to active Weingarten representation, a repre- sentative’s conduct remains protected even when he interrupts the employer’s questioning to ask clarifying questions, Postal Service, 288 NLRB 864, 868 (1988), or advises the employee to refrain from answering certain questions until clarification is given. Murtis Taylor Human Services Systems, supra. Here, Proper acted wholly within the proper scope of her rep- resentational capacity during the meeting. Rather than attempt- ing to impede Veith’s questioning, her efforts enhanced it by raising potential extenuating factors for Mayer’s alleged under- performance. She also interjected after a question to ensure that Mayer was not confused by Veith’s reference to “session effi- ciency.” This is the very type of protected conduct the Board has found an employer must abide in an investigatory meeting. USPS (NALC, Branch 753), 351 NLRB 1226, 1227 (2007) (“nei- ther an employer’s right to conduct the interview, nor any other legitimate prerogative, extends to entrapping an employee into unknowingly confessing to misconduct without objection from his representative”). Accordingly, I find that, by barring Proper from making any interruptions during her questioning, Veith denied Mayer the ef- fective assistance of her representative in violation of the Act as alleged in ¶ 5(u) of the complaint. d. Veith’s emailed rules regarding union conduct in investiga- tory meetings [¶ 5(x)] Four days following Mayer’s investigatory meeting, accord- ing to the General Counsel, Veith unilaterally promulgated a set of overly broad and discriminatory rules governing Proper’s con- duct in future investigatory meetings, in violation of sections 8(a)(5) and (1) of the Act. (i) Facts On October 12, Proper sent Veith an email complaining about being called “honey” at the end of Mayer’s investigatory meet- ing. Two days later, Veith apologized via email. She went on to state the following regarding Proper’s role in investigatory meet- ings: I have been bothered by our interactions in several investiga- tory meetings and I appreciate the opportunity to clarify roles 61 It is clear—and Respondent does not dispute—that the investiga- tory nature of this meeting entitled Mayer to representation. and expectations. I experience your approach in our investiga- tory meetings to be extremely disrespectful, combative, and in general taking liberties that are not appropriate to your role as Union Steward. Moving forward, I would also like to be treated in a respectful manner and to be assured that you will work within the limitations of your assigned rule. She then listed her “expectations” for future investigatory meet- ings, which included the following: • I expect to meet with a Purple employee without interruption. • I expect to hold the floor when I am conducting a meeting with a Purple employee. • The steward must be allowed to have a private meeting with the employee before questioning begins. Please note, these meetings must take place off the VRS floor. I have seen several meetings happen on the VRS floor and moving forward, please use the quiet room, conference room, or other quiet space off the VRS floor for these meetings. • Union meetings with employees may occur only BEFORE questioning begins. • The steward can speak during the interview, but cannot insist that the interview be ended. • When the questioning ends, the steward can provide infor- mation to justify the employee’s conduct. • I support you to choose an approach that is non-combative. Standing and attempting to use intimidating body language is unprofessional and disrespectful. Sarcastic and snide com- ments, overt or under your breath, is unprofessional and disre- spectful. • And finally, I expect you to remember the investigatory meeting is between management and the Purple employee. This meeting is an inappropriate place to debate policy regard- ing Union Steward considerations like a timesheet.62 After listing some further guidelines regarding how Proper was to account for her time spent in during investigatory meet- ings, discussed infra, Veith concluded her missive as follows: In closing, I have observed and tolerated several disrespectful choices from you since becoming Center Manager. I gave you the benefit of the doubt when I should have set boundaries from the beginning. I regret giving you the false impression that you had any authority beyond the rights afforded to you as an em- ployee and as a steward. I look forward to moving forward in a mutually respectful manner with clearly defined roles and ex- pectations. (Jt. Exh. 53.) It is undisputed that none of Veith’s stated 62 As discussed, infra, the subject of how Proper was to account for her time spent in the meeting was discussed near its end. PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 43 expectations or guidelines was the result of bargaining with the Union. (Tr. 970–972, 1332–1333.) (ii) Analysis The General Counsel alleges that, by her October 14 email, Veith unilaterally promulgated numerous unlawful and discrim- inatory rules. I agree with respect to certain aspects of the email and disagree as to others.63 First, to the extent it barred Proper from interrupting during investigatory meetings, required that Veith “hold the floor” and allowed Proper to provide exculpatory information only after Veith’s questioning ended, the email set forth rules expressly aimed at and promulgated in response to Proper’s exercise of Section 7 rights during the October 10 meeting. As the Board has held, forcing a Weingarten representative to act as a passive observer, even temporarily, violate the Act. Texaco, Inc., 251 NLRB at 643; Lockheed Martin, 330 NLRB at 430. Accord- ingly, I find that these rules—which have a direct and significant impact on Section 7 rights in the critical Weingarten representa- tion context—cannot be justified by Respondent’s prerogative to investigate employee misconduct and therefore violate Section 8(a)(1). In addition, Veith’s insistence that, going forward, any consultation between an employee and her Weingarten repre- sentative take place “off the VRS floor,” amounts to an unlawful ban on Section 7 discussions in the workplace. There is no evi- dence that Respondent has ever banned any other form of com- munication between employees on its production floor, and Re- spondent has offered no justification for singling out discussions between a steward and an employee preparing for an investiga- tory interview in this regard. As such, this rule violates the Act. See, e.g., Station Casino, LLC, 358 NLRB 1556, 1634 (2012) (rule prohibiting “union talk” unlawful). Finally, I find that Veith’s suggestion that she would consider Proper’s standing during an investigatory meeting, using intimi- dating body language, or making sarcastic or “snide” comments violates the Act. While the Board has indicated that it considers general civility rules lawful, Veith’s effort to editorialize Proper’s representational conduct is not a general rule; it was promulgated in response to Proper’s Section 7 conduct and ex- pressly applies a heightened civility standard to stewards at- tempting to represent their coworkers. A prior restraint based on such a vague and subjective standard (what, precisely constitutes a “snide” comment?) constitutes a direct and substantial incur- sion on the Section 7 rights of both stewards and the employees they represent. Nor has Respondent shown Veith’s pronounced standards to be justified by business necessity; while Respondent is certainly entitled to interview its employees about their poten- tial misconduct, Respondent has not demonstrated that holding Weingarten representatives to a heightened etiquette standard is necessary to achieve that goal. Accordingly, I find that, by her emailed statements set forth at ¶ (x)(2), (3), (5), (6) and (7) of the complaint, as well as the 63 I do not agree with Respondent that the Board’s decision in Food Services of America, Inc., 360 NLRB 1012, 1016 fn. 11 (2014) dictates that Veith’s pronouncements did not amount to the promulgation of rules of general applicability. That case, however, dealt with a supervisor ver- bally advising an employee that “[he] could really have a future with the company if [he] stopped talking to [a former employee].” Veith’s email, portion of her email stating that “meetings must take place off the VRS floor” as set forth at ¶ 5(x)(4) of the complaint, Veith violated Section 8(a)(1) of the Act. Because her statements took direct aim at protected Section 7 conduct and had a direct impact on the terms and conditions of unit employees seeking to exer- cise their Weingarten rights, I find that they also violated Section 8(a)(3) of the Act. Finally, as there is no evidence that Respond- ent had ever held union stewards to such standards in the past, Veith’s directives—presented as a fait accompli—constituted unlawful unilateral changes. USPS (NALC Branch 283), 341 NLRB 684, 687 (2004) (unilateral change to manner in which union representatives may carry out representational duties vio- lates Section 8(a)(5)). The remaining portions of Veith’s email, I find, do not amount to violations of Section 8(a)(5), (3) or (1). First, her suggestion that investigatory meetings not be used as a venue for the steward to “debate policy” (such as how whether the steward should be afforded official time for the meeting) is in keeping with the Weingarten policy of preserving the employer’s right to investi- gate in an environment free from collective bargaining. See Weingarten, supra at 258–259. Likewise, her statement that a steward has no right to insist that an investigatory interview be ended is consistent with the Board’s concern that Weingarten rights not intrude on an employer’s legitimate prerogative to in- vestigate misconduct. Nor do I find unlawful her statement that stewards “must be allowed to have a private meeting with the [represented] employee before questioning begins”; this is simply an accurate statement of the law. See Climax Molyb- denum Company, a Division of Amax Co., Inc., 227 NLRB 1189 (1977), enforcement denied 584 F.2d 360 (10th Cir. 1978). Fi- nally, Veith’s comments about Proper’s “role” and “authority” and their respective “roles and expectations,” while perhaps curt (or even snide), simply do not themselves set forth constitute in- dependent, substantive rules governing, or adverse actions re- garding, Proper’s conduct going forward. Accordingly, I recommend that the allegations set forth at ¶ 5(x)(1), (5), (8), (9), (10) and the portion of Veith’s email stating that “[t]he steward must be allowed to have a private meeting with the employee before questioning begins” as set forth at ¶ 5(x)(4) of the complaint be dismissed. e. Veith’s rule on Proper’s use of contractual union time [¶ 6(f)] The General Counsel also alleges that, by her email, Veith im- posed a unilateral and discriminatory rule providing that time a steward’s time spent using the restroom while serving as a Union representative during investigatory interviews would not be con- sidered contractual Union time and could reflect negatively in her VI performance ratings. This “bathroom time” rule is alleged as a violation of section 8(a)(5) and (3) of the Act. by contrast, clearly imparted expectations for stewards’ Weingarten rep- resentation, which would necessarily impact other employees. Indeed, while addressed to Proper, the rules themselves were framed as rules for all stewards participating in such meetings, and repeatedly referred to the conduct of “the steward,” and not Proper alone. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 44 (i) Facts The CBA contains the following language regarding the treat- ment of stewards’ time spent acting as a representative in an in- vestigatory interview: Article 25—Employee Representatives 1. Time spent by Union stewards in grievance meetings or when representing an employee in investigatory meetings dur- ing the steward’s workday shall be considered working time. 2. An employee’s participation as Union representative in meetings of thirty (30) minutes or longer shall not reflect neg- atively in any performance standard. (Jt. Exh. 1.) The performance standard most relevant to article 25 is “log in percentage”: VIs are expected to be “logged in,” i.e., capable of taking calls, at least 80 percent of their work time. Failure to meet this percentage can lead to discipline. (Tr. 1166, 1334–1336.) Veith’s email contained the following statement regarding the dispute about “union time” she and Proper had engaged in at the close of Mayer’s Weingarten meeting: I, also, want to clarify—“agreeing” to meeting times means you and I see the same time on the clock at the end of themeet- ing. After the meeting, you might want to debrief with the em- ployee, that is not part of Union time. Union meetings with employees may only occur BEFORE questioning begins. You might need a bathroom break which is also not Union time. The meeting ends when we have concluded the investigatory meeting and not when you return to your work station. (GC Exh. 53) (emphasis added). Proper testified that she had previously understood herself to be entitled to “union time” for the entirety of an investigatory meeting, including bathroom breaks, but provided no concrete examples of when this had ac- tually occurred. (Tr. 1164–1165.) Respondent likewise pro- vided no evidence regarding the parties’ past treatment of bath- room breaks for purposes of the 30-minute calculation. (ii) Analysis As noted, where an employer unilaterally alters the manner in which a union representative may carry out his representational responsibilities, Section 8(a)(5) is violated. USPS (NALC Branch 283), supra. Here, however, I find no credible record evidence that time spent by a steward in the bathroom was, in fact, ever considered time spent “in meetings” for purposes of the contract’s 30-minute union-time rule. In the absence of such evidence, I have no basis on which to conclude that a unilateral change was made. As such, I shall recommend the Section 8(a)(5) allegation be dismissed. Turning to the 8(a)(3) allegation, I do not find that Veith’s re- quirement that time spent during bathroom breaks be subtracted 64 Caplette had been invited to attend the previous day by Fragassi, who stated that the meeting was going to concern a “conduct issue.” 65 I credit the employees’ version of this meeting. Haraz repeatedly stated in her 611(c) testimony that she could not recall the specifics of what she said to Caplette but then, when questioned by Respondent’s from Proper’s union time constituted discrimination based on her union activity. Indeed, I find Veith’s “bathroom break” rule wholly consistent with the parties’ contract, which makes it clear that Respondent will apply its performance metrics to a steward without consideration of any time she spent in a meeting acting as an employee’s representative, unless that time exceeds 30 minutes. There being no evidence that Respondent in fact con- ducts investigatory meetings in bathrooms, Veith’s reminder that bathroom time does not count towards meeting time appears to me a reasonable and appropriate interpretation of the terms on which the parties agreed. I shall therefore recommend that the 8(a)(3) allegation be dismissed. 2. Haraz conduct Haraz is alleged to have violated the Weingarten rights of three employees and additionally to have promulgated an overly broad and discriminatory rule regarding union representatives’ conduct during investigatory meetings. a. Downey interrogation on September 29 [¶ 5(s)] (i) Facts On September 29, Tempe VI Brett Downey (Downey) was summoned to the center manager’s office to meet with Haraz and Stambaugh via video conference. Downey was not informed of the purpose of the meeting, but in attendance was VI-steward Caplette.64 Haraz opened the meeting by telling Downey that she was investigating an issue involving his conduct and that he was entitled to have a representative present. She then asked him if he wanted Caplette to remain, to which he said yes. (Tr. 314, 450, 588–589, 847, 850.) Haraz next said that Downey had been accused of showing an “inappropriate” magazine to his coworkers. She began asking him about the incident, as well as about what type of reading material he kept at work. During this questioning, according to Downey, Caplette interjected, asking Downey to elaborate on his answer. In response, Haraz became aggressive in tone, telling Caplette, “we need to stop here . . . and clarify your role, Michelle.” She then said Caplette was to “just sit there and take notes, and to counsel Downey, but not to speak.” Caplette re- sponded that she knew what her job was. During the remainder of the meeting, she continued to interject questions aimed at al- lowing Downey to explain himself. Haraz ended the meeting by stating that her investigation was ongoing. It is undisputed that, as a result of this interview, Downey was issued a disci- pline. (Tr. 109, 316–317, 323, 590–591, 602–603, 850–852, 866–867; Jt. Exh. 19.)65 (ii) Analysis It is undisputed that Haraz’ questioning of Downey was inves- tigatory in nature; Respondent, however, argues that Caplette’s conduct nonetheless justified Haraz telling her that her proper role was to remain silent and take notes. I disagree. The Board has made clear that the Act is violated where an counsel, suddenly recalled that she said, in an “extremely professional” manner, “Michelle, if you can please allow [Downey] to answer that question himself. I really want to hear it from him.” I found this testi- mony, which went uncorroborated by Stambaugh, scripted and therefore unreliable. (Tr. 115, 174.) PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 45 employer-representative, at the outset of an investigatory meet- ing, instructs the designated Weingarten representative to remain silent throughout the interview. Texaco, Inc., 251 NLRB at 633. Short of such a broad, “prior restraint,” employer attempts to cur- tail a representative’s statutorily protected role should be evalu- ated with an eye towards the employer’s right to investigate em- ployee conduct. Southwestern Bell Telephone Co., 251 NLRB 612, 613 (1980). In keeping with this balancing framework, a representative whose actions transform the meeting from a fact finding to an “adversarial confrontation” will be found to have lost Section 7 protection and may be lawfully silenced (or even disciplined) for her conduct. The Board has found this to be the case where a steward engages in disruptive conduct, such as making repeated obstructive, abusive or insulting interruptions during an employer’s questioning, that interferes with the em- ployer’s legitimate need to investigate. See Yellow Freight Sys- tems, 317 NLRB 115, 124 (1995) (steward repeatedly made “verbally abusive and arrogantly insulting interruptions,” shouted obscenities, pounded the desk and called supervisor a liar); New Jersey Bell Telephone Co., 308 NLRB 277, 280 (1992) (steward impermissibly interfered with employer’s inves- tigation by repeatedly objecting to employer’s questions and in- sisting that employee refuse to respond to questions asked more than once). Such is not the case here. While Caplette admittedly “chimed in” throughout the meeting, there is no evidence that her conduct was violent, verbally abusive, arrogant or insulting, or that she attempted to limit the scope of Haraz’ questions in any way. In- stead, she fulfilled her representative role by encouraging Downey to offer an explanation for his conduct. A Weingarten representative is not relegated to the status of a silent observer, but is entitled to give “active assistance” to the represented em- ployee. Washoe Medical Center, 348 NLRB 361, 361 (2006) (quoting Barnard College, 340 NLRB 934, 935 (2003)). That is what Caplette did, without unduly interfering with Haraz’ questioning or otherwise transforming the interview into an ad- versarial confrontation. Accordingly, I find that Caplette was engaged within the proper scope of her representational capacity during the meeting and that, by barring her from making any in- terruptions during her questioning, Haraz denied Downey the ef- fective assistance of his representative in violation of the Act as alleged in ¶ 5(s) of the complaint.66 b. Maschue interrogation on September 29 [¶ 5(t)] The General Counsel alleges that, on September 29, Haraz ef- fectively denied the request by employee Nora Maschue 66 Respondent argues that no violation should lie, however, because, after Haraz attempted to silence her, Caplette continued to participate. This misses the point; ordering a union steward to cease participating during a disciplinary meeting works to intimidate the employee being interviewed by—at a minimum—suggesting that the steward may herself face discipline for her efforts. 67 This conduct is also alleged as an unlawful interrogation in viola- tion of Section 8(a)(1). 68 This conduct is also alleged as a threat of unspecified reprisals in violation of Sec. 8(a)(1), an adverse action in violation of Section 8(a)(3), and unilateral change in violation of Sec. 8(a)(5). (See ¶ 6(d).) 69 Haraz testified that she considered the caucus to be an “obstruction” to her investigation. (Maschue) for Weingarten representation by taking actions dur- ing an investigatory interview, including interrogating Maschue about her union activities67 and demanding that she “swear” she had not been coached to lie,68 that prevented her union repre- sentative from effectively providing her with assistance and counsel during the interview. (i) Facts Tempe VI Maschue was ordered to meet (via video) with Haraz and Stambaugh immediately following Downey’s meet- ing. Despite the fact that the collective-bargaining agreement obligated Respondent to provide Maschue advance notice of the purpose of the meeting, she was given no such notice. When Maschue arrived for the meeting, Caplette was present (having been asked to stay following Downey’s meeting). At the onset of the meeting, Haraz informed Maschue that she was entitled to union representation and asked her to confirm that she wanted Caplette to stay. At the same time, Caplette passed Maschue a note saying that they could confer with each other if Maschue wanted to. In response, Maschue told Haraz that she wanted to “counsel” with Caplette. An admittedly displeased Haraz69 ap- peared reluctant, but agreed to let them leave the room. (Tr. 121, 175, 451, 605–606, 852–853.) The two returned a couple of minutes later, at which point Haraz asked Maschue whether her meeting with Caplette would “inhibit [her] ability to answer questions honestly.” Maschue re- sponded that she would be able to answer questions “just fine.” Haraz, however, continued to insist that either Maschue or Caplette would need to “attest” that their consultation was not going to influence Maschue’s responses to her questions. Mas- chue testified that this exchange continued for a couple of minutes until she had twice repeated that she would be able to answer all of Haraz’ questions truthfully and that her conversa- tion with Caplette would not inhibit her ability to do so. The meeting then proceeded, and Haraz asked Maschue questions about the Downey magazine incident; as Stambaugh testified, these questions were intended to determine whether Maschue herself had engaged in misconduct. At the meeting’s conclusion, Haraz said there would be an ongoing investigation and Maschue would be informed of the results. (Tr. 335–336, 605–608, 611– 612, 853–857.) I have based my factual findings regarding this meeting on Maschue’s testimony, as generally corroborated by Caplette,70 and, to a lesser extent, Stambaugh.71 Once again, Haraz claimed to be unable to recall specific details about the meeting, but ra- ther seemed intent on recasting selective aspects of it in a light 70 I do not credit Caplette’s testimony that Haraz also asked explicitly asked Maschue whether Caplette had directed her in how to answer ques- tions, suggested answers to her or directed her not to answer questions. I found this testimony (uncorroborated by Maschue herself) was pre- sented in a somewhat histrionic fashion, suggesting that it was embel- lished. 71 Stambaugh grudgingly admitted (consistent with her notes of the meeting) that, after Maschue and Caplette returned from their caucus, one of them represented that their meeting would not “impact the integ- rity” of Respondent’s investigation, an assurance that “may” have been prompted by Haraz’ request for the same. (Tr. 326–332; Jt. Exh. 20.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 46 more favorable to Respondent’s case.72 (ii) Analysis As a preliminary matter, I find that the nature and circum- stances of Maschue’s questioning, as well as Haraz’ statement earlier that she was entitled to representation, would reasonably cause an employee in Maschue’s position to believer that her dis- cipline hung in the balance during this interview, and thus, her Weingarten rights attached. Interrogation: The General Counsel alleges that, by asking Maschue whether her caucus with Caplette would inhibit her ability to answer questions honestly, Haraz unlawfully interro- gated her about her union activities, as well as those of Caplette. I agree. Clearly, the act of caucusing before a Weingarten interview constitutes protected conduct. See Murtis Taylor Human Ser- vices Systems, 360 NLRB 546, 547; Corrections Corp. of Amer- ica, 347 NLRB at 636. Nonetheless, this does not mean that Haraz had no right to ask Maschue anything about the conversa- tion in question; in fact, she was entitled to ask about unprotected conduct that took place during their otherwise protected caucus. Thus, were the Board to find the act of coaching an employee to lie during an investigation unprotected,73 Haraz would have been permitted to inquire whether Caplette had coached Maschue to tell a falsehood during interview that followed. See, e.g., HCA/Portsmouth Regional Hosp., 316 NLRB 919, 919 (1995) (lawful for employer to ask about defamatory statements made in furtherance of protected conduct). However, Haraz did not limit her inquiry to whether Caplette had directed Maschue to lie during the interview; her question was broader, asking Maschue whether there was any reason why, as a result of the caucus, she would be inhibited in her ability to answer questions honestly. I find that a reasonable employee under the circumstances would understand the Haraz wanted to know whether Caplette had discouraged her from being fully honest, for example, by coaching her to keep her answers brief, feign ignorance or misunderstanding, or refuse to respond to cer- tain questions. Such coaching, depending on the nature disci- pline Maschue faced, would be legitimate and protected conduct not properly the subject of employer interrogation. As the Board recently held, an employer investigating unprotected conduct must nonetheless “focus closely” on such conduct and “mini- mize intrusion into Section 7 activity.” Time Warner Cable New York City, LLC, 366 NLRB No. 116, slip op. at 4–5 (2018) (find- ing unlawful questioning, during investigation of unlawful strike, where inquiries “intruded into Section 7 communications between employees”). Again, even assuming that Haraz was en- titled to inquire as to whether Maschue had been coached to lie, 72 She claimed, for example, to have been concerned about the em- ployees’ caucus because it occurred in the “middle” of the meeting, after she had made “progress” with her investigation. This testimony was con- tradicted by Stambaugh’s meeting notes, which indicate that the break took place before the significant bulk of the questioning took place. (Tr. 121; Jt. Exh. 20.) 73 I find no direct authority on this interesting issue, but note that the Board has countenanced a union official’s lack of candor in other in- stances. See, e.g., Roadmaster Corp., 288 NLRB 1195 (1988) (falsifying employees’ signatures on grievances is protected concerted activity), 874 her inquiry went further and effectively calling on Maschue to disclose protected communications that may have occurred dur- ing her caucus with Caplette. Accordingly, I find that, by asking Maschue whether her cau- cus with Caplette would “inhibit [her] ability to answer questions honestly,” Haraz unlawfully interrogated Maschue about her un- ion membership, activities, and sympathies and that of others, as alleged in ¶ 5(t)(3)(i) of the complaint. Requirement to “swear” or “attest”: The General Counsel next alleges that Haraz’ insistence that Maschue attest to the truthfulness of her answers constituted an unlawful threat of un- specified reprisals and “taint[ed] the whole interview,” effec- tively denying Maschue the assistance and counsel of her chosen Weingarten representative. I disagree. After Maschue exercised her right to consult with her steward, Haraz attempted to regain control of meeting’s pace by reminding Maschue that her an- swers were expected to be truthful. While this posturing may have enhanced the coercive quality of her prior, unlawful inter- rogation, it did not operate to silence Caplette or curtail her in- volvement in the meeting that ensued. As such, I do not find that it, in effect, denied Maschue her right to the active representation by Caplette. Nor do I find that a reasonable employee, such as Caplette, would interpret the attestation requirement as signaling a future reprisal against her. The General Counsel also alleges that Haraz’ requirement that Maschue “attest” to the honesty of her answers amounted to a unilateral change in violation of Section 8(a)(5) and a discrimi- natory adverse action in violation of Section 8(a)(3). While the Board has found similar violations where an employer was found to have required employees to sign written attestations of their statements in a Weingarten meeting (see Murtis Taylor Human Services Systems, supra) the allegations here fails for a lack of proof. Specifically, the record fails to establish that either (a) Haraz broke with a past practice of not requiring employees to “attest” in investigatory meetings; or (b) Respondent has ever failed to require “attestation” from employees who decline rep- resentation in such meetings.74 Based on the above, I therefore recommend that ¶ 5(t)(3)(ii) and (iii) of the complaint be dismissed. c. Seashols interrogation on October 11 [¶ 5(v)] (i) Facts In late August, Tempe VI Kristin Seashols (Seashols) was re- quested by Stambaugh (via email) to attend a meeting. After a series of unsuccessful attempts by Stambaugh to schedule the meeting with Seashols, Haraz sent her a certified letter on Sep- tember 21, stating that it was “imperative” that she arrange to attend “a mandatory meeting for [her] performance.” When F.2d 448 (7th Cir. 1989); but see Fresenius USA Mfg. Inc., 362 NLRB No. 130 (2015) (employee’s dishonesty during employer’s legitimate in- vestigation of facially valid and serious complaints of misconduct unpro- tected). 74 According to the General Counsel, “Respondent likely does not tell employees to swear or affirm they are telling the truth when a union rep- resentative is not present—when Respondent does it after a caucus it fur- ther demonstrates discrimination on basis on union activity.” (GC Br. at 113.) Such speculation falls well short of the General Counsel’s prima facie burden under either Section 8(a)(5) or (3). PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 47 Stambaugh attempted via text message to confirm the date and time for the appointment, Seashols responded that she was wait- ing to hear about VI-steward Caplette’s availability. At this point, Stambaugh texted: The meeting is disciplinary in nature and therefore weingarten does not apply. you will not be entitled to a steward for our meeting. While there appears to have been some confusion about the time period for which Seashols’ performance was at issue, Stam- baugh’s follow-up email on October 11—the day prior to the meeting—made it clear that Seashols’ performance was to be the meeting’s subject. (Jt. Exh. 15; GC Exhs. 3, 6; Tr. 619–621.) On October 11, Seashols met with Stambaugh in the Center Manager’s office with Haraz present on speakerphone. Stam- baugh announced that they were going to discuss Seashols’ per- formance during May and June; Seashols informed her that she had already met with Jonagan about this time period and that a faulty video transmission was to blame for her low productivity. Stambaugh then announced that they were going to discuss Seashols’ performance during the period from June through Au- gust. When Stambaugh asked her to explain why she had failed to meet a particular performance standard, Stambaugh again blamed technical problems, including a defective camera. Dur- ing the meeting, Stambaugh presented Seashols with a final warning for her alleged underperformance, some of which Seashols, during the meeting, had attributed to Respondent’s faulty equipment.75 After Seashols signed it, the meeting ended and she walked Stambaugh out to the production floor to point out the defective camera they had discussed. (Tr. 628–635, 391, 397.)76 (ii) Analysis As a preliminary matter, I reject Respondent’s contention that Seashols, by appearing at the October 11 interview without her representative, waived her Weingarten rights. As discussed, su- pra, where a manager lures an employee into an investigatory interview by mischaracterizing it as something else, that em- ployee’s Weingarten rights are undermined and the Act is vio- lated. See Las Palmas Med. Ctr., 358 NLRB at 469. In this case, Stambaugh’s email expressly informed Seashols that Weingarten rights did not apply to the meeting she was expected to attend. To the extent that her characterization was false, Seashols cannot be held to have waived her rights. Respondent claims that the meeting was held for the sole pur- pose of issuing Seashols a discipline, and that therefore Weingarten did not apply. I disagree. Where an employer’s stated purpose for a meeting is to issue employee discipline, Weingarten rights may nonetheless attach if the employer’s rep- resentative, during the meeting, engages in any conduct beyond merely informing the employee of a previously made discipli- nary decision. This may occur where the employer, during the meeting, attempts to gain information to bolster the rationale for the discipline or asks questions unrelated to it. Becker Group, Inc., 329 NLRB 103, 107 (1999); Baton Rouge Water Works Co., 75 I credit Stambaugh’s testimony that this disciplinary notice was drafted prior to the meeting and that she made no changes to it as a result of the meeting. 246 NLRB 995, 997 (1979); Quazite Corp., 316 NLRB 1068 (1994). In this case, Stambaugh appears to have done both. First, she used the meeting to ferret out the circumstances on which Seashols blamed for her underperformance, including having her identify the equipment she claimed was faulty. She also appears to have asked questions about her performance dur- ing a time period unrelated to the discipline. Accordingly, I find that, Respondent, by Stambaugh, violated the Act by interrogating Seashols as alleged in ¶ 5(v) of the com- plaint. d. October 12 union representative participation rule [¶ 5(w)] (i) Facts On October 1, Caplette emailed Haraz, complaining about be- ing improperly restrained in carrying out her steward role during the September 29 meetings. Two weeks later, Haraz countered, accusing Caplette of obstructing her right to conduct investiga- tions. Referring to Caplette’s conduct in the Downey meeting, she stated: Moving forward, if you can please give the employee the op- portunity to answer first and if you feel that he or she has not answered fully and in a forthright manner, please ask us to ei- ther clarify the question or request that the employee elaborate. You also have the right to elaborate and justify the employee’s conduct after the questioning has ended but not during the time the employer is gathering information to figure out if there was in fact any misconduct. (Jt. Exh. 23.) (ii) Analysis Haraz’ rule conflicts with the Board’s recognition of the proper scope of Weingarten rights. First, the rule requires Caplette to remain silent during questioning and allows her to ask for clarification of questions only once they have been an- swered. Thus, the rule expressly prevents her from inserting a clarifying objection to protect an interviewed employee from un- knowingly confessing to misconduct; this the Board would con- sider an improper limitation “at a crucial juncture of the inter- view’). USPS (NALC, Branch 753), 351 NLRB at 1227. Addi- tionally, the rule improperly limits Caplette’s ability to offer ex- culpatory evidence (i.e., to “elaborate and justify the employee’s conduct”) to the time period after Haraz’ questioning is com- plete, which the Board has also found unduly restrictive. See Lockheed Martin, 330 NLRB at 429 (after steward was told to “shut up” until the employer’s investigator was done question- ing, his eventual participation did not “excuse [the] effort to con- fine his participation during the interview”). Accordingly, by her emailed October 12 union representative participation rule, Haraz promulgated an overly broad and dis- criminatory rule as alleged in ¶ 5(w) of the complaint. M. Information request allegations According to the General Counsel, Respondent on multiple occasions failed and refused to respond to information requests 76 I base my factual findings on Seashols’ testimony, which was de- tailed and unvarnished. Neither Haraz nor Stambaugh could recall spe- cific details of the meeting. (See Tr. 349.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 48 made by the Union, and on other occasions unreasonably de- layed in responding to requests. Respondent asserts that it re- sponded to all relevant requests, and made a reasonable, good- faith attempt to do so in a timely manner. Numerous requests, according to Respondent, did not obligate a response, because they sought documents on non-mandatory subjects of bargain- ing, or subjects with respect to which the Union had waived bar- gaining by agreeing to the CBA’s management-rights clause. Respondent also argues that the Union’s information requests were made in bad faith, in an attempt to ‘bury’ Respondent in paperwork. A discussion of the relevant Board law is followed by an analysis of each information request allegation, below. 1. The applicable standard An employer is obliged under Section 8(a)(5) and (1) of the Act to supply information requested by a collective-bargaining representative that is necessary and relevant to the latter’s per- formance of its responsibilities to the employees it represents. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979); NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152 (1956). To trigger this obli- gation, the requested information need not be dispositive of, but only potentially relevant to, the issue in dispute between the par- ties. PAE Aviation & Technical Services LLC, 366 NLRB No. 95, slip op. at 3 (2018); Piedmont Gardens, 362 NLRB 1135, 1137 (2015); Pennsylvania Power & Light Co., 301 NLRB 1104, 1104–1105 (1991); Conrock Co., 263 NLRB 1293, 1294 (1982). The refusal of an employer to provide relevant information is a per se violation of the Act without regard to the employer’s sub- jective good or bad faith. Piggly Wiggly Midwest, LLC, 357 NLRB 2344 (2012); Procter & Gamble Mfg., 237 NLRB 747, 751 (1978), enfd. 603 F.2d 1310 (8th Cir. 1979); Brooklyn Union Gas Co., 220 NLRB 189, 191 (1975). In analyzing relevance, requested information that relates di- rectly to represented employees’ terms and conditions of em- ployment is considered presumptively relevant. Beverly Health & Rehabilitation Services, 328 NLRB 885, 888 (1999); Samari- tan Medical Center, 319 NLRB 392, 397 (1995). With respect to such information, a union is not required to make a specific showing of relevance unless the employer has submitted evi- dence sufficient to rebut the presumption. Living and Learning Centers, Inc., 251 NLRB 284, 288 fn. 3 (1980), enfd. 652 F.2d 209 (1st Cir. 1981). Since a bargaining representative’s respon- sibilities include the administration of the collective-bargaining agreement and the processing and evaluating of grievances thereunder, information requests pertinent to a union’s decision to file or process grievances are presumptively relevant. Acme Industrial, supra at 436; Beth Abraham Health Services, 332 NLRB 1234, 1234 (2000); Safeway Stores, 236 NLRB 1126 fn.1 (1978). In the case of non-presumptively relevant information, the General Counsel must establish the relevance of the requested information, by presenting evidence that either (1) the union demonstrated the relevance of the information, or (2) the rele- vance of the information should have been apparent to the em- ployer under the circumstances. The Board applies a liberal, dis- covery-type standard in such cases (i.e., as opposed to the stand- ard of relevance in trial proceedings). Acme Industrial, supra at 432 fn. 6; Hamilton Sundstrand, 352 NLRB 482 (2008). This broad standard is construed “broadly to encompass any matter that bears on or that reasonably could lead to other matter[s] that could bear on, any issue. . . ” Oppenheimer Fund, Inc. v. Sand- ers, 437 U.S. 340, 351 (1978); Hickman v. Taylor, 329 U.S. 495 (1947). The information need not be dispositive of issues be- tween the parties, but need only have some bearing on them. Thus, an employer must furnish information that is of even prob- able or potential relevance to the union’s duties. Orthodox Jew- ish Home for the Aged, 314 NLRB 1006, 1007–1008 (1994); Pfizer Inc., 268 NLRB 916 (1984); Conrock Co., 263 NLRB 1293, 1294 (1982). There are, however, limits to the duty to provide information. First, the duty is limited to providing information on a subject with respect to which the employer has a duty to bargain. There- fore, “when the request pertains to a subject that is nonmanda- tory . . . then neither employers nor labor organizations are obliged under the Act to furnish information requested for bar- gaining on [that] subject.” Service Employees Local 535 (North Bay Center), 287 NLRB 1223, 1225 (1988) (quoting Ameri- can Stores Packing Co., 277 NLRB 1656, 1658 (1986)); Piper Elec., Inc., 339 NLRB 1232 (2003) (“there is no duty to furnish information concerning a non-mandatory subject of bargain- ing”). Such is the case where a union requests information rele- vant only to a topic with respect to which the requesting union has waived the right to bargain. American Stores, supra at 1658 (employer not obligated to provide documents with respect to subject waived by management-rights clause). As noted supra, however, waiver of statutory lights is not to be lightly inferred but instead must meet the Board’s “clear and unmistakable” standard. Metropolitan Edison Co. v. NLRB, 460 U.S. at 709; Federal Compress & Warehouse Co. v. NLRB, 398 F.2d 631, 636 (6th Cir. 1968); Quality Roofing Supply Co., 357 No. 75 (2011); General Electric Co., 296 NLRB 844, 844 (1989). In practice, this means that either the contract language must be specific, or it must be shown that the matter claimed to have been waived was fully discussed by the parties and that the union con- sciously yielded its interest in the matter. Allison Corp., 330 NLRB at 1365; Trojan Yacht, 319 NLRB 741, 742 (1995). As to the former, the Board looks to the precise wording of the rel- evant contract provisions. Allison Corp., supra; KIRO, Inc., 317 NLRB 1325, 1327 (1995). Second, an employer is not required to respond to information requests made in bad faith. Jefferson Smurfit Corp., 311 NLRB 41, 60 (1993). In this regard, however, vague allegations of a union’s bad faith do not suffice as a defense, and when a party is shown to have sought information for a proper and legitimate purpose, it does not lose its entitlement to the information if there are other reasons for the request. Ralphs Grocery Co., 352 NLRB 128, 135 (2008), adopted following remand by 355 NLRB 1279 (2010); Associated General Contractors of Califor- nia, 242 NLRB 891, 894 (1979), enfd. in part 633 F.2d 766 (9th Cir. 1980); Country Ford, supra (citing Island Creek Coal Co., 292 NLRB 480, 489 (1989)). In this case, I find that the Union had a legitimate and proper purpose—carrying out its duties as the unit employees’ bargaining representative—for requesting each of the items of information to which I find it is entitled. Therefore, I find no merit to Respondent’s “bad faith” PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 49 argument.77 An analysis of the individual information-request allegations follows: 2. Request for dual rate information [¶ 7(n)] The General Counsel alleges that Respondent failed to pro- vide certain requested information regarding unit employees who were paid at a dual pay rate because they performed both VRS and community interpreting work. a. Facts On April 15, Yost, by email, requested that Haraz provide the names of, and actual rate amounts for unit employees paid at a dual rate. Haraz’ initial response came the same day; she prom- ised to get back to Yost “shortly.” On May 11, Yost followed up, demanding a response by May 13. Again, responding the same day, Haraz asked Yost to clarify why the Union needed to know the community rates earned by unit members. “Commu- nity interpreting,” she noted, “is not covered under the Collective Bargaining Agreement.” Yost responded that the dual rates for unit members were “compensation—a mandatory subject of bar- gaining.” (Jt. Exh. 37.) Haraz responded 2 days later, stating that Yost’s request was “out of the jurisdiction of the Union because the Certification of Representation does not cover Community Interpreters.” Re- spondent’s position, she concluded, was that the pay rate earned by unit employees when performing community interpreting work is “not subject to collective-bargaining, not covered by the agreement, and [] not included in the Certification of Represen- tation.” Id. It is undisputed that Respondent failed to provide information responsive to this request. (Tr. 986.) b. Analysis It is well settled that information concerning wages, hours, and other terms and conditions of employment for unit employ- ees is presumptively relevant to the union’s role as exclusive col- lective-bargaining representative. See Southern California Gas Co., 344 NLRB 231, 235 (2005). Respondent does not dispute this, but instead claims that it was not obligated to provide the requested documents because the Union waived the right to bar- gain over community interpreting work. For the reasons stated supra at § C, I have rejected this argument. Accordingly, I find that Respondent, by failing to provide the requested information regarding wage rate for “dual rate” em- ployees, violated Section 8(a)(5) as alleged. 3. Request for documentation of caller complaint investigator training [¶ 7(s)] The General Counsel alleges that Respondent failed to pro- vide certain requested information regarding the training given individuals who are charged with investigating customer com- plaints lodged against unit employees. 77 While Yost was no doubt vigorous in his pursuit of information, I do not believe, based on his demeanor and the record as a whole, that he employed a deliberate strategy to “cripple” Respondent’s operations with gratuitous requests. Nor do I agree, as Respondent suggests, that he a. Facts On July 22, Yost emailed a letter to Haraz.78 As he testified, he had become concerned over what he perceived as an uptick in customer complaint discipline and “sniffed a new policy” was to blame. Referring to “recent and multiple” disciplinary actions over customer complaints, he demanded to bargain over “any new or revised policy that leads to discipline tied to customer complaints.” In the same letter, he requested multiple documents relating to customer complaints, including a request for: documents, and the dates they went into effect, reflecting any training given to the person or persons who investigate com- plaints and determine if such complaints warrant disciplinary action. He received no response. (GC Exh. 59, 59(b); Tr. 2684–2686.) b. Analysis Respondent urges that the Union waived its right to the subject of the information sought—customer complaint disciplinary standards—by agreeing to the contract’s management-rights clause, which reserves to Respondent, inter alia, the right to “de- mote, suspend, discipline and discharge employees,” “maintain the discipline and efficiency of its employees,” “establish work standards,” “adopt reasonable rules of conduct, appearance and safety, and penalties for violations thereof,” and “determine the quality of customer services.” (See Jt. Exh. 1.) In this case, I agree. For a management-rights clause to act as a clear, unequivocal, and unmistakable waiver of a union’s statutory right to bargain over a particular action taken by the employer, it must be shown that either (a) the clause explicitly references the subject matter at issue; or (b) the bargaining history evidence indicating that the particular matter at issue was fully discussed and consciously ex- plored during negotiations, and that the union consciously yielded or clearly and unmistakably waived its interest in the matter. Hi-Tech Cable Corp., 309 NLRB 3, 4 (1992). Here, there is no contention that the Union acquiesced during bargain- ing to Respondent’s right to develop standards for issuing cus- tomer complaint discipline. That said, various portions of the clause do reserve to Respondent of the right to establish perfor- mance standards, enforce discipline and determine the quality of customer service. I find that these provisions, read together, op- erate to waive the Union’s right to bargain over the subject to which the sought documents relate: the standard whereby em- ployees receive customer complaint discipline. See United Technologies Corp., 287 NLRB 198, 198 (1987) (management- rights clause granting employer “right to make and apply rules and regulations for production, discipline, efficiency, and safety” waived union’s right to bargain over employer’s change in its progressive discipline procedure), enfd. 884 F.2d 1569 (2d Cir. 1989); cf. Graymont PA, Inc., 364 NLRB No. 37 (no waiver of right to bargain over unilateral change to work rules, made many duplicative requests; indeed, each of his requests appears tailored to address a specific, individual action taken by Respondent. 78 I give no credence to Respondent’s speculation—contrary to Yost’s testimony—that this request was never sent. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 50 absenteeism policy, and progressive discipline schedule where management-rights clause did not specifically reference those subjects). Accordingly, I recommend that the allegation set forth at ¶ 7(s) of the complaint be dismissed. 4. Request for information regarding San Diego facility closure [¶ 7(t)] The General Counsel alleges that, since about August 3, 2016, Respondent failed to provide certain requested information re- garding the temporary closure of Respondent’s San Diego call center. Respondent contends that it was not obligated to do so, because the contract’s management-rights clause privileged it to close the center temporarily. a. Facts By way of background, the CBA contains a no-lockout provi- sion, which states as follows: The Company agrees that there shall be no lockout during the term of this Agreement. As used herein, the term “lockout” shall not include the closing down or curtailment of operations or layoffs due to economic conditions, business or operational reasons, natural disaster, or reasons beyond the Company’s control. (Jt. Exh. 1 at 20.) Following a water leak at the San Diego call center during the summer of 2016, Respondent closed the center for 2 weeks. Dur- ing the closure, the center’s calls were routed to other centers and the San Diego VIs were left without work. On July 28, 2016, Yost emailed Haraz, complaining that “employees are feeling uninformed regarding the status of the repairs and when the cen- ter will reopen.” On August 2, 2016, having received no re- sponse to his email, Yost sent emailed Haraz, requesting a status update on the closure and a projected reopening date. He also cast doubt on the need for the closure, noting reports that the clean-up and repairs had been completed, stating: [y]ou have failed to respond to my July 28 email regarding the closure of SDCC. The Guild requested a status update with details of the issue(s) and a projected reopening time. Unit work has been withheld from SDCC employees since July 23 with no explanation apart from repairs and inspections being underway due to a leak that occurred 11 days ago. Some who have needed to retrieve belongings from the suite report that it appears fully operable. There are no hazard warn- ing signs posted on doors that enter the suite. Statements made by building maintenance staff reveal the clean up and repairs have been complete and the suite became operable last week. Air quality is reported to be fine. Again, please providea status update with details of the issue(s) and a projected reopening time. (GC Exh. 60; Tr. 2692–2696.) The following day, Yost filed a request for a step-one griev- ance meeting regarding the center’s closure and requested the following documents: 1. A detailed account of the underlying reason for which SDCC has been closed; 2. A detailed account of the Employer’s actions in response to the water damage, including cleanup, restoration, and safety tests; 3. Findings, and test results regarding the health and safety concerns cited; 4. Any and all notes and reports of Purple Communications and all personnel, and contractors involved in the restoration and the decision to determine the operability of SDCC; and 5. A projected date of reopening SDCC. Yost explained that he requested this information because unit employees had reported to him that they had been into the center that it appeared operable and they were concerned about missing work. While the center was still closed, Yost and Haraz spoke by telephone, and Haraz asked him, “what makes you think you have the right to know this information?” to which he responded that, if Respondent had decided to keep the center closed to save money, this would amount to a lock out and violate the parties’ CBA. According to Yost, the conversation ended “abruptly”; it is undisputed that Respondent never responded to Yost’s his re- quests. (Tr. 1662, 2692–2696; Jt. Exh. 97.) b. Analysis Yost’s information request clearly sought relevant infor- mation. First, to the extent he requested information regarding the center’s status as a safe workplace, such information is pre- sumptively relevant. Detroit Newspaper Agency, 317 NLRB 1071, 1077 (1995) (“‘[f]ew matters can be of greater legitimate concern to individuals in the workplace, and thus to the bargain- ing agent representing them, than exposure to conditions poten- tially threatening their health, well-being, or their very lives’”) (citing Minnesota Mining & Mfg. Co., 261 NLRB 27, 29 (1982)). Moreover, Yost legitimately sought information that would ena- ble him to determine whether Respondent was violating the con- tract’s no-lockout clause by using the water leak as a pretext to keep the center closed after it was repaired and fully operational. He based this not on pure speculation, but rather reports from VIs that they had witnessed the center in that condition. Shop- pers Food Warehouse Corp., 315 NLRB 258, 259 (1994) (rele- vance shown where requesting party demonstrates reasonable belief, supported by objective evidence, which may include hear- say reports, that requested information is relevant) (citations omitted). Respondent does not dispute the relevance of the requested information, but instead argues that the Union waived its right to the information by agreeing to the CBA’s management-rights clause. I cannot agree. It is true that the management-rights clause reserves to Respondent the right to “manage and control its departments, buildings, facilities, equipment and operations,” as well as to “discontinue work for business, economic, or oper- ational reasons.” However, based on reports from VIs, Yost sus- pected that Respondent—during the 2-week shut down—was in fact discontinuing work for more nefarious reasons outside the scope of this clause and in violation of the contract’s no-lockout provision. A requesting union is entitled to “data requested in order to properly administer and police a collective-bargaining agreement.” Oil, Chemical & Atomic Workers Local Union No. PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 51 6-418 v. NLRB, 711 F.2d 348, 358 (D.C. Cir. 1983); see also Proctor & Gamble Mfg. Co. v. NLRB, 603 F.2d 1310 (8th Cir. 1979). Based on the contractual language, I do not find that the Union, by agreeing to the management-rights clause, waived its right to seek information to determine whether Respondent had taken an unlawful action outside the scope of that very clause. Accordingly, I find that Respondent, by failing to provide the requested information regarding the closure of the San Diego call center during the summer of 2016, violated Section 8(a)(5) as alleged. 5. Request for Brooks’ discipline information [¶ 7(p)] The General Counsel alleges that, since July 6, 2016, Re- spondent failed to provide certain requested information regard- ing a discipline issued to VI Margie Brooks (Brooks), and addi- tionally delayed in providing other, similarly requested infor- mation. a. Facts On July 6, 2016, Yost, by email, sent Stambaugh notice of a step-two grievance over a final warning issued to Brooks for cus- tomer complaints. As was his practice, Yost attached a request for information related to the discipline, noting that the infor- mation was necessary in order for the Union to assess the matter in the grievance context. The requested information included Brooks’ personnel file, past commendations and discipline is- sued to her, comparator discipline issued to other VIs for cus- tomer complaints (including VIs in nonunion call centers).79 He also requested copies of all complaints lodged by the customer whose complaint led to Brooks’ discipline “in order to ascertain potential patterns of the complainant (chronic complainer, nature of complaints, etcetera).” Finally, he requested that Respondent provide the Union with “verification” that the computer hard- ware and software Brooks had used were “free of technical ab- normalities.” Yost requested that the information be provided by July 15, 2016. (Jt. Exh. 83; Tr. 2681.) On July 8, 2016, Haraz informed Yost that she would provide the information no later than July 22, but she did not. Haraz credibly testified that she did attempt to send Yost responsive information on the day in question but used an incorrect email address that had been saved by her email program; this was re- flected by the documentary evidence. After Respondent’s legal counsel notified her of her error, she forwarded Yost her misdi- rected, original response and apologized for the mistake on No- vember 2, 2016. Her attachments included documents respon- sive to the first three of Yost’s requests.80 In response to the request for Brooks’ commendations, Haraz referred Yost to these same documents, which do include notations regarding various commendations Brooks received from customers, but no actual commendations. With respect to the request for any additional complaints filed by the customer who had complained about Brooks, Haraz stated that Respondent had a policy against di- vulging the names of its customers. (Tr. 1644–1646, 2682– 79 The text of the information request is set forth in Appendix A to this decision. 80 I base this conclusion on the posture of the complaint, which alleges only delay with respect to these items. 2684; Jt. Exh. 88, 89.) With respect to requests for comparator documents (items 7 and 8 of the request), Haraz stated that Respondent had already provided the Union with copies of all past discipline for unit members and that: [s]hould the guild want the employer to provide copies of past disciplines at other Union represented centers, please provide the employer the following: • Name • VI number • Dates • Specifics of the disciplinary action (Jt. Exh. 89) She also took issue with Yost’s request for verifi- cation that Brooks’ equipment was functioning normally, stat- ing: The employer does not understand your request in #4. In your request, you stated “...free from abnormalities...” The em- ployer is requesting that the guild provide the employer sub- stantiation leading you to believe there is any such abnormali- ties [sic]. Please provide the following: • Define “abnormalities” • A list of where the union got information that there may be “abnormalities” in the [] technology • Any and all correspondence between the [Union] and its members • Documentation of dates, times and customer in which the “abnormalities” occurred. Id. There is no evidence that Yost responded to her queries. Because Respondent raises a confidentiality defense to certain of the information requested regarding Brooks’ discipline, a dis- cussion of its confidentiality policy and relevant regulatory au- thority is necessary. Respondent does maintain a handbook pol- icy (the lawfulness of which is not at issue here) stating that em- ployees are responsible for safeguarding confidential infor- mation about its customers. According to Stambaugh, “[c]us- tomer information is very confidential”). (Jt. Exh. 24 at 27–28; Tr. 1832.) Respondent is also subject to a Federal Communications Commission (FCC) regulation that requires it to keep certain customer data confidential.81 This regulation, which applies to “telecommunications relay services” such as Respondent, pro- vides that, absent a lawful order, certain “customer profile data” may not be “sold, distributed, shared or revealed in any other way” by a “relay center or its employees.” 47 CFR 64.604(c)(7). The rulemaking history of this regulation indicates that the FCC considered “the confidentiality of customer profile information [to be] of paramount importance” to users of telecommunica- tions relay services, and that “unfettered access” to such 81 See Feb. 13, 2017 Consent Decree in Purple Communications, Inc. and CSDVRS, LLC, 2017 FCC 17-10 (Federal Communications Com- mission). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 52 information “would violate the reasonable privacy expectations” of those users.82 Respondent also refers to certain privacy obli- gations provided under Section 222 of the Communications Act, which governs telecommunications carrier; however, Respond- ent has offered no evidence that it is a carrier subject to this Act, and I have found none. See 47 U.S.C. § 222(a) (imposing duty on every telecommunications carrier “to protect the confidenti- ality of proprietary information of and relating to . . . custom- ers”). b. Analysis As Respondent offers various defenses to these information request allegations, I will examine them by category: Disciplinary/personnel file documents (items 1–3, 6 of Exhibit A.) The Board has repeatedly held that information related to the discipline of employees is presumptively relevant. Security Walls, LLC, 361 NLRB 348 (2014); Lansing Automakers Fed- eral Credit Union, 355 NLRB 1345 (2010); Dish Network Ser- vice Corp., 339 NLRB 1126 (2003); Grand Rapids Press, 331 NLRB 296 (2000). Indeed, this is the very type of information that the Union might need to process and/or evaluate a grievance or to determine whether to proceed to arbitration. PAE Aviation, 366 NLRB No. 95, slip op. at 3 (sufficient relevance shown where information sought “bear[s] on the Union’s preparation of a defense for the grievant…or its determination whether to con- tinue to process the grievance”) (citing Holiday Inn on the Bay, 317 NLRB 479, 481–482 (1995)); see also NLRB v. Acme Indus- trial Co., 385 U.S. at 435–436 (employer has a duty to furnish information which necessary to enable union to evaluate intelli- gently grievances filed). Respondent does not argue otherwise, but instead claims that its delay in providing such documents (sought by items 1–3 of the request) was excusable, in that Haraz did (albeit unsuccessfully) attempt to send responsive infor- mation. Absent evidence of justification, an unreasonable delay in providing requested information constitutes a violation of Sec- tion 8(a)(5) “‘inasmuch “[a]s the Union was entitled to the infor- mation at the time it made its initial request, [and] it was [r]espondent’s duty to furnish it as promptly as possible.’” PAE Aviation, 366 NLRB No. 95, slip op. at 3 (citing Pennco, Inc., 212 NLRB 677, 678 (1974)); see also Monmouth Care Center, 354 NLRB 11, 41 (2009) (citations omitted), reaffirmed and in- corporated by reference, 356 NLRB 152 (2010), enfd. 672 F.3d 1085 (D.C. Cir. 2012) (“[a]n unreasonable delay in furnishing such information is as much of a violation of Section 8(a)(5) of the Act as a refusal to furnish the information at all”). As the Board recently reiterated, when evaluating whether a delay was reasonable, [t]he analysis is an objective one; it focuses not on whether the employer delayed in bad faith or in an attempt to avoid produc- tion, but on whether it supplied the requested information in a reasonable time. Management & Training Corporation, 366 NLRB No. 134, slip 82 In re Telecommunications Relay Services, Report and Order and Further Notice of Proposed Rulemaking, 2000 WL 245346 (Federal Communications Commission). op. at 3 (2018) (citing Champion Home Builders Co., 350 NLRB 788, 788 fn. 7 (2007)). Here, the facts demonstrate that Haraz had a reasonable amount of time in which to amass the requested information (as she in fact did so), but negligently failed to send it to Yost’s proper email address. That her mistake was made in good faith is of no consequence, and I find that, by her 3½ month delay in responding to these requests, Haraz violated the Act as alleged. See id. (3 1/2month delay in providing information not excused by “forgetfulness”). Turning to item 6 of the request, which sought copies of Brook’s customer commendations, Respondent does not offer any explanation for its refusal to respond to this item. Such doc- uments would have relevance as potential exculpatory evidence in support of Brook’s customer complaint grievance; no issue of customer confidentiality having been raised by Respondent, I find that its nonproduction violated Section 8(a)(5). Customer-related information (item 5 of Exhibit A). With re- spect to Yost’s request for copies of other complaints filed by the individual on whose complaint Respondent relied in disciplining Brooks, such potential exculpatory information is clearly rele- vant and would undoubtedly have appeared so to Respondent un- der the circumstances. Respondent, however, argues that it was not obligated to provide copies of additional complaints because Haraz told the Union this information was confidential. I disa- gree. Under Board law, a bargaining representative is entitled to the identity of, and contact information for, a customer who make complaints resulting in discharge or other discipline of an em- ployee, unless the employer has demonstrated a need for confi- dentiality by showing that it promised the customer anonymity, or the customer had a reasonable expectation of privacy. Resorts International Hotel, 307 NLRB 1437 (1992); Fairmont Hotel, 304 NLRB 746 fn.3 (1991). If the employer establishes its claim of confidentiality, that claim must be balanced against the Un- ion’s need for the information; and the employer must also show that it met its obligation to come forward with an offer to accom- modate the two competing interests. Fairmont Hotel, supra; see also, Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979); Lenox Hill Hospital, 362 NLRB 106, 106 fn. 2 (2015). In this case, the evidence indicates that Respondent’s custom- ers do have a reasonable expectation of privacy in information contained in what the FCC terms his or her “customer profile.” However, Respondent failed to demonstrate that the contents of the complaint documents requested fell within this definition, and, in any event, failed to notify the Union of its regulatory ra- tionale for nondisclosure, simply stating that it had a “policy” against disclosing customer information. Finally, Respondent never proposed any accommodation to any concern it claimed to have, such as redacting the information protected by FCC regu- lations. Under the circumstances, I cannot find that Respondent was excused from its duty to provide the requested information. I will, however, allow Respondent in a subsequent compliance proceeding to demonstrate the necessity of redacting certain in- formation pursuant to 47 U.S.C. § 222(a) and/or 47 CFR PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 53 64.604(c)(7). Comparative discipline (items 7 and 8 of Exhibit A) In pre- paring for a grievance, a union is entitled to information that will assist it in assessing the level of discipline imposed for compa- rable infractions. PAE Aviation, 366 NLRB No. 95, slip op. at 3. A union’s attempt to determine whether there has been dis- parate treatment of employees renders information regarding comparative discipline relevant, even when it involves non-unit employees. St. Francis Regional Med. Ctr., 363 NLRB No. 69, slip op. at 22 (2015) (citing SBC California, 344 NLRB 243, 246 (2005). In the context of Brooks’ grievance, Yost sought docu- ments—in the form of comparative discipline—that would dis- close whether Respondent was consistently enforcing its stand- ards for customer complaint discipline; as such, his request was relevant. See id. (request for comparative discipline relevant and necessary to union in representing its members). Instead of providing these documents, Respondent countered that, pursuant to the CBA, it had already provided the Union cop- ies of all discipline issued to unit employees. The Board, how- ever, has rejected the argument that a union’s alternate source of documents excuses their production in response to a relevant in- formation request. See Lansing Automakers Federal Credit Un- ion, 355 NLRB 1345, 1352 (2010) (absent special circum- stances, “an employer may not refuse to furnish relevant infor- mation on the grounds that the union has an alternative source or method of obtaining the information”); King Soopers, Inc., 344 NLRB at 844 (respondent’s duty to provide requested infor- mation “not satisfied merely because the [u]nion might have been able to locate the document in its records”); Illinois-Amer- ican Water Co., 296 NLRB 715, 724–725 (1989) (rejecting em- ployer’s contention it was relieved from providing information it believed was in possession of union or available through union stewards or union records), enfd. 933 F.2d 1368 (7th Cir. 1991). Respondent may in fact have provided the Union with copies of disciplinary notices as they were issued. This, however, does not mean that the Union must accept this to be the case, or to undertake the burdensome task of reviewing every discipline provided to determine whether it involved a customer complaint. Rather, the Union is entitled to an “accurate and authoritative” disclosure of what Respondent considers discipline for customer complaints for purposes of the grievance at hand. See Kroger Co., 226 NLRB 512, 513–514 (1976) (“[a]bsent special circum- stances, a union’s right to information is not defeated merely be- cause the union may acquire the needed information through an independent course of investigation. The union is under no ob- ligation to utilize a burdensome procedure of obtaining desired information where the employer may have such information available in a more convenient form”). As such, I find that the Union was entitled to the comparative discipline documents it requested. Verification of lack of “technical abnormalities” (item 4 of Exhibit A) To the extent that the Union sought to have Respond- ent “verify” that the hardware and software Brooks used was free of “technical abnormalities,” I find that this allegation fails. Un- der the circumstances, it was not evident on its face what form of “verification” the Union sought, and, despite Haraz’ request 83 See Appendix A, attached hereto. for clarification, the Union failed to explain what it meant by the term, “technical abnormalities.” Nor was it clear whether the Union was asking that Respondent attest to the system’s current fitness or its condition at the time Brook received her customer complaint, another issue Haraz also unsuccessfully sought to clarify. Under the circumstances, I find that the Union failed to state its request with sufficient particularity, thereby excusing Respondent’s compliance. Based on the above, I shall recommend dismissal of this por- tion of the General Counsel’s allegations. 6. Request for Sterling’s discipline information [¶ 7(q)] The General Counsel alleges that, since July 14, 2016, Re- spondent failed to provide certain information requested by the Union regarding a discipline issued to VI Ava Sterling (Sterling). a. Facts On July 14, 2016, Yost, by email, sent Stambaugh notice of a step-two grievance over a final warning issued to Sterling for having 13 customer complaints during the prior year. Again, he attached a request for information related to the discipline, not- ing that the information was necessary as part of its handling of Sterling’s grievance, and also mentioning the Union’s general concern about the increased instance customer complaint disci- pline. (Tr. 2678; Jt. Exh. 90.) The requested information in- cluded documents relied on in issuing Sterling the discipline, copies of complaints lodged against her in the past year, and comparator discipline issued to other VIs for customer com- plaints (including VIs at Respondent’s nonunion centers). He also requested “documents reflecting any training given to the person or person who investigated the complaints that led to [Sterling’s] discipline.”83 On July 29, 2016, Stambaugh emailed Yost attaching a re- sponse drafted by Haraz. This response included what appears to be a log of complaints about Sterling during the previous year, but these documents identified the complaining customers iden- tified only as “Customer A,” “Customer B,” etc. In this regard, Haraz referred to Respondent’s “policy. . . . not to divulge cus- tomer names regarding communications between our customers and clients.” Respondent also failed to provide documents re- garding the training given its investigators, stating that the Union was “requesting information privy to management,” which was “outside the jurisdiction of the collective bargaining agreement.” Nor did Respondent provide comparator documents, stating that this information was also beyond the Union’s “jurisdiction” in that it was not “covered” by the parties’ contract. (Jt. Exh. 90, 91; Tr. 2679.) On August 2, 2016, Yost responded. Dismissing Respond- ent’s “jurisdictional” objections as “misplaced,” he noted that the Union’s purpose was to “rule out discrimination of an employee for engaging in union membership” and to ensure that discipline was “evenly handed.” He further argued that Respondent’s over- breath objection did not excuse it from disclosing the documents relied on in issuing the discipline. Following this email, Yost received no response. (Jt. Exh. 92; Tr. 2679–2680.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 54 b. Analysis The majority of Yost’s requests regarding Sterling’s discipline (personnel file, comparative discipline, etc.) echo those he made regarding the discipline issued to Brooks, and I therefore find them similarly relevant requests to which Respondent was obli- gated to respond. Likewise, to the extent that Yost made clear that he was concerned with a change in Respondent’s practice in evaluating customer complaints, I also find that he was entitled to the management training materials he requested. Relevance having been shown for these requests, I find no merit to Haraz’ “jurisdictional” arguments for withholding responsive docu- ments. The remaining issue is whether, considering Respondent’s regulatory obligations regarding customer information, Haraz was entitled to respond to the Union’s request for customer com- plaints by providing a summary with customer names redacted. As I have indicated, Respondent appears to have had a legitimate rationale for withholding certain customer information pursuant to federal requirements. This fact alone, however, does not ex- cuse Haraz’ conduct. As noted, once an employer has demon- strated a genuine confidentiality concern, it is required to bargain with the union for an accommodation. See Lenox Hill Hospital, 362 NLRB 106, 106 1 fn. 2. Had Haraz fully informed Yost about Respondent’s regulatory obligation and then proposed an accommodation, her actions may well have been lawful. But she instead unilaterally fashioned an accommodation that suited Re- spondent; this falls short of meeting Respondent’s bargaining obligation, and I find that the Union is entitled to the information as requested. Accordingly, I find that Respondent, by failing to provide the information requested on July 14, 2016, regarding a discipline issued to VI Sterling, violated Section 8(a)(5) as alleged. Again, I will allow Respondent in a subsequent compliance proceeding to demonstrate the necessity of redacting information pursuant to 47 U.S.C. § 222(a) and/or 47 CFR 64.604(c)(7). 7. Request for Wilson’s discipline information [¶ 7(r)] The General Counsel alleges that, since July 14, 2016, Re- spondent failed to provide certain requested information regard- ing a discipline issued to VI Wayne Wilson (Wilson). a. Facts On July 14, 2016, Yost, by email, sent Stambaugh notice of a step-two grievance over a written warning issued to Wilson based on customer complaints. In addition to arguing that the warning was unwarranted, Yost stated that, “disciplining em- ployees for customer complaints is a new policy or practice im- posed after ratification of the collective bargaining agreement and without bargaining with the Guild.” Again, he attached a request for information related to the discipline, noting that the information was necessary as part of its grievance handling. The requested information echoed that Yost had requested with re- spect to Sterling’s discipline (see Appendix A), and it was met with an equivalent response by Haraz on August 26, 2016, in terms of documents and objections. On September 2, 2016, Yost responded in a manner similar to his prior rebuttal in support of the parallel Sterling requests, noting that the requested extra-unit information was “relevant in order to establish even handedness, company-wide, regarding discipline issued for customer com- plaints.” He received no response. ((Tr. 1652–1654, 2672– 2677; Jt. Exhs. 93, 94, 95; GC Exh. 58.) b. Analysis As Yost’s requests regarding Wilson’s discipline, and Haraz’ response thereto, are essentially identical to those regarding Ster- ling, my findings regarding relevance and Respondent’s “juris- dictional” arguments and confidentiality defense are likewise the same. Accordingly, I find that Respondent, by failing to provide the information requested by the Union on July 14, 2016 regarding a discipline issued to VI Wilson, violated Section 8(a)(5) as al- leged. Once again, I will allow Respondent in a subsequent com- pliance proceeding to demonstrate the necessity of redacting in- formation pursuant to 47 U.S.C. § 222(a) and/or 47 CFR 64.604(c)(7). 8. Request for Maschue’s discipline information [¶ 7(w)] The General Counsel alleges that, since about November 9, 2016, Respondent failed to provide documents Respondent re- lied upon in disciplining VI Maschue. a. Facts On November 9, 2016, VI-steward Caplette sent Stambaugh a request for information related to a discipline issued to Maschue. Among other things, she requested all documents relied upon by Maschue in deciding to discipline Maschue. Caplette requested that the information be provided by November 18, 2016. After obtaining two extensions of time from the Union, Haraz finally sent Respondent’s response on December 29, 2016, indicating that responsive documents included its notes from the investiga- tory meeting regarding Maschue’s discipline I have previously found to have involved an unlawful interrogation. With respect to those notes, Haraz stated as follows: Management and Human Resources notes are outside of the jurisdiction of the guild [Union]. Management and shop stew- ard was present during these investigatory meetings. At hearing, Haraz confirmed that management and human re- sources’ notes of Maschue’s investigatory meeting existed and reiterated her position that she was not obligated to provide them, because the Union, having had a steward present at the meeting, was in possession of the information the notes contained. (GC Exh. 62–64; Tr. 1673.) b. Analysis I have previously found each of Respondent’s rationales for withholding responsive documents—its “jurisdictional” argu- ment and claim that the Union already possesses the infor- mation—to lack merit. See Lansing Automakers, 355 NLRB 1345; King Soopers, Inc., 344 NLRB842; Illinois-American Wa- ter Co., 296 NLRB 715. In this case, Respondent’s attempt to shield from disclosure clearly relevant material—indeed, notes that I have found to support a finding that Haraz unlawfully de- nied Maschue the assistance of her Weingarten representative— reflects either complete ignorance of Respondent’s bargaining obligation or an egregious disregard of the same. PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 55 Accordingly, I find that Respondent, by failing to provide the information requested by the Union on November 9, 2016, re- garding a discipline issued to VI Maschue, violated Section 8(a)(5) as alleged. CONCLUSIONS OF LAW 1. Respondent Purple Communications, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent CSDVRS, LLC d/b/a ZVRS is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. Respondent Purple Communications, Inc. and Respondent CSDVRS, LLC d/b/a ZVRS (collectively, Respondent) consti- tute a joint employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 4. Charging Party Pacific Media Workers Guild, Local 39521, The Newspaper Guild, Communications Workers of America, AFL–CIO (the Union) is a labor organization within the mean- ing of Section 2(5) of the Act. 5. During the relevant time period, Respondent was signatory to a collective-bargaining agreement with the Union (the 2015 Agreement), which by its terms is effective from April 1, 2015 through March 31, 2017. 6. The Union is the exclusive collective-bargaining repre- sentative of the following units, each of which is a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: (a) All full-time and flex staff Video Interpreters (VIs) em- ployed by the Employer at its facility located at 4542 Ruffner Street, Suite 270, San Diego, California, but excluding all other employees, center assistants, confidential employees, manag- ers, office clerical employees and guards, professional employ- ees and supervisors as defined by the National Labor Relations Act. (b) All full-time and flex staff Video Interpreters (VIs) em- ployed by Respondent at its Denver, Colorado facility, but ex- cluding all other employees, center assistants, confidential em- ployees, managers, office clerical employees and guards, pro- fessional employees and supervisors as defined by the National Labor Relations Act. (c) All full-time and flex staff Video Interpreters employed by the Employer in Tempe, Arizona, but excluding all other em- ployees, center assistants, confidential employees, managers, office clerical employees and guards, professional employees and supervisors as defined by the National Labor Relations Act. (d) All full-time and flex staff Video Interpreters (VIs) em- ployed by the Employer at its facility located in Oakland, Cal- ifornia, but excluding all other employees, center assistants, confidential employees, managers, office clerical employees and guards, professional employees and supervisors as defined by the National Labor Relations Act. 7. At all times since at least December 7, 2012, the Union, based on Section 9(a) of the Act, has been the exclusive collective-bargaining representative of the employees in the units described in ¶ 6(a) through (d), above (the unit employees). 8. Respondent has violated Section 8(a)(1) of the Act by: (a) Maintaining an overly broad electronic communications policy that unlawfully interferes with employees’ use of Re- spondent’s email system for Section 7 purposes; (b) Maintaining an overly broad confidentiality policy that pre- vents employees from discussing performance appraisals, sal- ary increases and other employment records; (c) Disparately applying its Internet, Intranet, Voicemail and Electronic Communication Policy to prohibit non-business e- mails relating to unionization, while permitting non-business e- mails that do not relate to unionization; (d) Disparately applying its non-solicitation policy to ban em- ployees from placing union materials in the break room of its Tempe call center; (e) Maintaining overly broad and discriminatory rules prohib- iting the following conduct by employee-stewards serving as Weingarten representatives: (1) objecting to a question asked by management before the interviewed employee answers it; and (2) offering exculpatory evidence before management questioning is complete. (f) Informing employees that it would be futile for them to se- lect the Union as their bargaining representative, by telling them that the 2015 Agreement offers substantially the same terms and benefits as its non-represented employees receive without having to pay dues. (g) Promising employees benefits for the purpose of coercing them into rejecting the Union as their bargaining representative by telling them that they would be granted all terms and bene- fits contained in the 2015 Agreement; (h) Promulgating an overly-broad and discriminatory directive prohibiting employee-stewards from using Respondent’s e- mail system for communicating with employees in its call cen- ters regarding the Union; (i) Labeling employee disciplinary notices as “confidential”; (j) Threatening to investigate employees based on the Union’s request for information regarding employee discipline; (k) Threatening employees with unspecified reprisals for en- gaging in union or other protected activities; (l) Interrogating employees about their union and other pro- tected activities, and the union and other protected activities of others; (m) Denying unit employees the presence and/or assistance of DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 56 their union representative at an interview which the employee reasonably believes may result in disciplinary action, including by ordering the union representative in question to remain si- lent and/or refrain from interrupting; (n) Creating the impression that employees’ union and other protected conduct is under surveillance; (o) Soliciting employees to report on the union activities of their coworkers; and (p) Disparaging the Union in its role as the unit employees’ col- lective-bargaining representative by suggesting that, by bar- gaining a collective-bargaining agreement for them, the Union had “done nothing.” 9. Respondent has violated Section 8(a)(1) and Section 8(a)(3) of the Act by: (a) Directing employees to remove union-provided food, and pro-union displays and decorations from the work place; (b) Removing union flyers from the tables in the break room of its Tempe call center; and (c) Removing union-provided food from the break room of its San Diego call center; 10. Respondent has violated Section 8(a)(5) and (1) of the Act by: (a) In March 2016, unilaterally changing the terms and condi- tions of employment of unit employees by ceasing to pay unit employees who were hired before August 2010 a differential for community interpreting work after they converted from full-time to “flex” status, without giving the Union notice and the opportunity to bargain over this change; (b) In about May 2016,failing to continue in effect all the terms and conditions of the 2015 Agreement by ceasing to deduct dues from the earnings of unit employees attributable to the performance of community interpreting work without the Un- ion’s consent. (c) Failing to provide the following necessary and relevant in- formation requested by the Union for the performance of col- lective bargaining duties: (1) information identified in complaint ¶ 7(n) regarding dual rates earned by unit employees; (2) information identified in complaint ¶ 7(t) regarding the temporary closure of the San Diego call center during the summer of 2016; (3) information regarding discipline issued to Margie Brooks, as identified in complaint ¶ 7(p)(5) through (8); (4) information regarding discipline issued to Ava Ster- ling, as identified in complaint ¶ 7(q); and (5) information regarding discipline issued to Nora Maschue, as identified in complaint ¶ 7(w). (d) Unreasonably delaying in providing information regarding discipline issued to Margie Brooks, as identified in complaint ¶ 7(p)(1) through (3), which information was necessary and rel- evant information requested by the Union for the performance of collective bargaining duties. 11. Respondent violated Section 8(a)(5), (3) and (1) of the Act by: (a) Promulgating and maintaining the following overly broad and discriminatory rules prohibiting the following employee conduct without giving the Union notice and the opportunity to bargain over the same: (1) using break rooms for pro-union activities and/or placing union literature in break rooms (other than on des- ignated union bulletin boards); (2) conducting union business on “work place property”; (3) engaging in union conduct, including placing union- provided food, displays or other items in break rooms without prior authorization by management; (4) displaying balloons and other pro-union parapherna- lia in work areas; (5) bringing in “treats or other efforts” for coworkers; (6) soliciting in work areas, other than the display of per- sonal effects; (7) displaying small symbols of union loyalty, except in designated areas; and (8) displaying larger symbols and displays of Union loy- alty in any areas; (b) Promulgating and maintaining an overly broad and dis- criminatory rule requiring employee-stewards to remove union announcements from tables in the break room at its Tempe call center, without giving the Union notice and the opportunity to bargain over the same; and (c) Promulgating and maintaining the following overly broad and discriminatory rules prohibiting the following conduct by employee-stewards serving as Weingarten representatives, without giving the Union notice and the opportunity to bargain over the same: (1) interrupting during the meeting; (2) providing information to justify the interviewed em- ployee’s conduct prior to the end of questioning by man- agement representative(s); (3) engaging in combative behavior, standing, using in- timidating body language or making sarcastic or snide comments; and (4) meeting with interviewed employee on the VRS floor. 12. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 13. The allegation that set forth in ¶ 8(b) of the complaint that, in or around February 2016, Respondent failed to continue in ef- fect all the terms and conditions of the 2015 Agreement, by PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 57 ceasing the practice of giving full-time unit employees schedul- ing preference over flex-time video interpreters, is deferred the parties’ contractual grievance-arbitration procedure. 14. The Respondent did not violate the Act as further alleged in the complaint. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist therefrom, to take certain affirmative action designed to effectuate the policies of the Act, and to post a notice to employ- ees to that effect. Having found certain of Respondent’s handbook rules to be overly broad and unlawful, I recommend that the Respondent be required to revise or rescind the unlawful rules, notify employees of the rescissions, and republish its handbook without the unlaw- ful rules. Having found that Respondent failed and refused to bargain with the Union as the exclusive collective-bargaining representa- tive of the unit employees by unilaterally changing the terms and conditions of employment of unit employees by ceasing to pay unit employees who were hired before August 2010 a differential for community interpreting work after they converted from full- time to “flex” status without giving the Union notice and the op- portunity to bargain over this change, I recommend that Re- spondent be ordered to rescind its change to the rate of pay for community interpreting work performed by unit members hired before 2010 who changed their work status from full-time to “flex” following the parties’ execution of an initial collective- bargaining agreement in April 2015. In this regard, Respondent should be ordered to make employees whole for any losses of earnings or other benefits suffered as a result of this violation, including contractual wages and benefits in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Ken- tucky River Medical Center, supra. I also recommend that Re- spondent be ordered to compensate unit employees for any ad- verse tax consequences of receiving any lump-sum backpay awards and to file a report with the Social Security Administra- tion allocating such backpay to the appropriate calendar quar- ters. Don Chavas, LLC d/b/a Tortillas Don Chavas, supra. Having found that Respondent failing and refusing to continue in effect all of the terms and conditions of the parties’ collective- bargaining agreement by ceasing the deduction of union dues and fees from certain community interpreting earnings of unit employees who authorized such deductions and ceasing the re- mittance of those union dues and fees to the Union, I recommend that Respondent be ordered to (a) rescind any modification made 84 As the Board explained in West Coast Cintas Corp., 291 NLRB 152, 156 fn. 6 (1988), Respondent must bear sole financial responsibility for the dues amounts it failed to collect. See also Space Needle, LLC, 362 NLRB 35, 39 fn. 12 (2015). To prevent a double recovery by the Union, however, payment by Respondent to the Union under this remedy should be offset by the amount of dues actually collected by the Union from members who authorized dues check-off since May 1, 2016, not- withstanding Respondent’s failure to remit such amounts to the Union. See A.W. Farrell & Son, 361 NLRB 1487, 1487 fn. 3 (2014). to the 2015 Agreement affecting dues withholding for unit em- ployees, and (b) make the Union whole for any dues it would have received since May 1, 2016, but for Respondent’s unlawful cessation, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medi- cal Center, supra, and without recouping the money owed for past dues from employees.84 Having found that Respondent failed and refused to provide the Union with information it requested on various dates as de- tailed above, it should be ordered to promptly supply said infor- mation. Specifically, I shall recommend that the Respondent be required to provide any of the information that I have found to have been unlawfully withheld as set forth in paragraphs 7(n), 7(r), 7(t), 7(p)(5) through (8), 7(q), and 7(w) of the complaint. As my findings reflect, in some instances a portion of the infor- mation encompassed in some of those paragraphs has been pro- vided. Information that has been provided need not be re-pro- vided. Respondent shall post appropriate informational notices and an explanation of rights,85 as described in the attached appendix. These documents shall be posted at Respondent’s facilities wher- ever the notices to employees are regularly posted for 60 days without anything covering it up or defacing its contents. In ad- dition to physical posting of paper notices and an explanation of rights, these documents shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if Respondent customarily communicates with its employees by such means. In the event that during the pen- dency of these proceedings Respondent has gone out of business or closed the facility involved in these proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by Re- spondent at any time since October 6, 2014. When the notice is issued to the Respondent, it shall sign it or otherwise notify Re- gion 28 of the Board what action it will take with respect to this decision. The General Counsel also seeks an order requiring that the at- tached notice be read to employees during working time by a high-ranking management official at the facility or by an agent of the Board. The reading aloud of a notice is an “extraordinary” remedy ordered in egregious circumstances where the Board’s traditional notice remedies are deemed insufficient. Federated Logistics & Operations, 340 NLRB 255, 258 (2003), enfd. 400 F.3d 920 (D.C. Cir. 2005). Such is the case where the respondent is a recidivist violator of the Act, where unfair labor practices are multiple and pervasive, or when circumstances exist that suggest employees will not understand or will not be appropriately in- formed by a notice posting. While I do not suggest that the unfair labor practices committed by Respondent were not serious, they 85 While I decline to recommend a notice-reading remedy in this case, I am sufficiently concerned that Respondent’s unit employees have been subjected to a pervasive assault on their rights under the Act, including unlawful conduct tending to undermine the Union as the unit employees’ selected bargaining representative, sufficient to warrant such a remedy. See Pacific Beach Hotel, 361 NLRB 709, 714 (2014) (ordering posting of explanation of rights setting out employees’ core rights under the Act, coupled with “clear general examples that are specifically relevant to the unfair labor practices found”). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 58 did not involve unlawful discharge or other discipline, with- drawal of recognition or other egregious acts constituting a broad attack on employee rights. I note that, while Respondent is tech- nically a “recidivist” with respect to its unlawful email policy, its underlying violation in Purple I was based on reliance on then-established Board law the Board overturned in that case. See Register Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). While Respondent, by continuing to maintain and apply its unlawful handbook rule, failed to adhere to the Board’s order in Purple I, I do not believe that a notice- reading remedy would meaningfully address this violation to any greater extent than the traditional notice posting I have outlined above. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended86 ORDER A. Respondents Purple Communications, Inc. (Purple) and CSDVRS, LLC (CSDVRS) (collectively, Respondent), their of- ficers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining an overly broad electronic communications policy that unlawfully interferes with employees’ use of its email system for Section 7 purposes; (b) Maintaining an overly broad confidentiality policy that prevents employees from discussing performance appraisals, salary increases and other employment records; (c) Disparately applying its Internet, Intranet, Voicemail and Electronic Communication Policy to prohibit non-business e- mails relating to unionization, while permitting nonbusiness e- mails that do not relate to unionization; (d) Disparately applying its non-solicitation policy to ban em- ployees from placing union materials in the break room of its Tempe call center; (e) Maintaining overly broad and discriminatory rules prohib- iting the following conduct by employee-stewards serving as Weingarten representatives: (1) objecting to a question asked by management before the interviewed employee answers it; and (2) offering exculpatory evidence before management questioning is complete. (f) Informing employees that it would be futile for them to select the Pacific Media Workers Guild, the Newspaper Guild- Communication Workers of America, Local 39521 (the Union) as their bargaining representative, by telling them that the 2015 Agreement offers substantially the same terms and benefits as its non-represented employees receive without having to pay dues. (g) Promising employees benefits for the purpose of coercing them into rejecting the Union as their bargaining representative by telling them that they would be granted all terms and benefits contained in the 2015 Agreement; (h) Promulgating an overly broad and discriminatory directive prohibiting employee-stewards from using Respondent’s e-mail 86 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended system for communicating with employees in its call centers re- garding the Union; (i) Labeling employee disciplinary notices as “confidential”; (j) Threatening to investigate employees based on the Union’s request for information regarding employee discipline; (k) Threatening employees with unspecified reprisals for en- gaging in union or other protected activities; (l) Interrogating employees about their union and other pro- tected activities, and the union and other protected activities of others; (m) Denying employees the presence and/or assistance of their union representative at an interview which the employee reasonably believes may result in disciplinary action, including by ordering the union representative in question to remain silent and/or refrain from interrupting; (n) Creating the impression that employees’ union and other protected conduct is under surveillance; (o) Soliciting employees to report on the union activities of their coworkers; (p) Disparaging the Union in its role as the unit employees’ collective-bargaining representative by suggesting that, by bar- gaining a collective-bargaining agreement for them, the Union had “done nothing”; (q) Directing employees to remove union-provided food, and prounion displays and decorations from the work place; (r) Removing union flyers and/or union-provided food from employee break rooms; (s) Unilaterally changing the terms and conditions of employ- ment of unit employees by changing the rate of pay for commu- nity interpreting work performed by unit employees hired before 2010 who converted from full-time to “flex” status without giv- ing the Union notice and the opportunity to bargain over this change; (t) Ceasing dues deduction from the earnings of unit employ- ees attributable to the performance of community interpreting work without giving the Union notice and the opportunity to bar- gain over this change; (u) Refusing to bargain collectively with the Union by failing and refusing to furnish it with requested information that is rele- vant and necessary to its performance of its functions as the col- lective-bargaining representative of Respondent’s unit employ- ees regarding wages, hours, and other terms and conditions of employment, or unreasonably delay in furnishing such infor- mation; (v) Promulgating and maintaining the following overly broad and discriminatory rules prohibiting the following employee conduct without giving the Union notice and the opportunity to bargain over the same: (1) using break rooms for pro-union activities and/or placing union literature in break rooms (other than on designated union bulletin boards); (2) conducting union business on “work place property”; (3) engaging in union conduct, including placing union- Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 59 provided food, displays or other items in break rooms without prior authorization by management; (4) displaying balloons and other pro-union paraphernalia in work areas; (5) bringing in “treats or other efforts” for coworkers; (6) soliciting in work areas, other than the display of personal effects; (7) displaying small symbols of union loyalty, except in desig- nated areas; and (8) displaying larger symbols and displays of union loyalty in any areas; (w) Promulgating and maintaining an overly broad and dis- criminatory rule requiring employee-stewards to remove union announcements from tables in the break room at its Tempe call center, without giving the Union notice and the opportunity to bargain over the same; (x) Promulgating and maintaining the following overly broad and discriminatory rules prohibiting the following conduct by employee-stewards serving as Weingarten representatives, with- out giving the Union notice and the opportunity to bargain over the same: (1) interrupting during the meeting; (2) providing information to justify the interviewed em- ployee’s conduct prior to the end of questioning by manage- ment representative(s); (3) engaging in combative behavior, standing, using of intim- idating body language, or making sarcastic or snide comments; and (4) meeting with the interviewed employee on the VRS floor; (y) In any like or related manner interfering with, restraining, 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 effectu- ate the policies of the Act. (a) Rescind the overly broad Internet, Intranet, Voicemail and Electronic Communication Policy and Employment Records policies in its employee handbook; (b) With respect to each of the Internet, Intranet, Voicemail and Electronic Communication Policy and the Employment Rec- ords policy, furnish employees with an insert for the current em- ployee handbook that (1) advises that the policy has been re- scinded, or (2) provides a lawfully worded policy in its place on adhesive backing that will cover the unlawful policy; or publish and distribute to employees revised employee handbooks that (1) do not contain the unlawful policy, or (2) provide a lawfully worded policy. (c) Rescind any modification made to the 2015 Agreement af- fecting dues withholding for unit employees; (d) Make the Union whole for any dues it would have received since May 1, 2016 but for Respondent’s unlawful cessation of 87 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the dues attributable to wages earned from community interpreting work, with interest as described in the remedy section, supra without recouping the money owed for past dues from employ- ees (e) Upon request of the Union, rescind the unlawful change to the rate of pay for community interpreting work performed by unit employees hired before 2010 who changed their work status from full-time to “flex” after the parties execution of their initial collective bargaining agreement on April 1, 2015; (f) Make employees affected by the foregoing unlawful change whole for any losses of earnings or other benefits suf- fered as a result of this violation, including contractual wages and benefits, with interest as set forth in the remedy section of this decision; (g) Compensate all affected employees for any adverse tax consequences of receiving a lump-sum backpay award and file a report with the Social Security Administration allocating such backpay to the appropriate calendar quarters. (h) Before implementing any future changes in wages, hours, or other terms and conditions of employment affecting unit em- ployees, notify and, on request, bargain collectively and in good faith with the Union as their exclusive representative of employ- ees, except as permitted by the collective-bargaining agreement; (i) Provide the Union with the documents identified in ¶ 7(n), ¶ 7(p)(5) through (8),¶ 7(q), ¶ 7(s) and ¶ 7(w) of the complaint. (j) Within 14 days after service by the Region, post at its fa- cilities nationwide copies of the attached notice marked “Appen- dix B” and post at its Denver, Colorado, Tempe, Arizona, San Diego, California and Oakland, California facilities copies of the attached notice marked “Appendix C” and the attached explana- tion of rights marked “Appendix D.”87 Copies of the notices and explanation of rights, on forms provided by the Regional Direc- tor for Region 28, after being signed by Respondent’s authorized representative, shall be posted by Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, the notices and explanation or rights shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if Respondent customarily communicates with its em- ployees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed a facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the relevant notice and, in the case of Respondent’s Denver, Colorado, Tempe, Arizona, San Diego, California, and Oakland, California facilities, the explanation of rights to all current em- ployees and former employees employed by the Respondent at said closed facility or business at any time since October 6, 2014. (k) Within 21 days after service by the Region, file with the Regional Director for Region 28 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply. United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 60 IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C. August 3, 2018 APPENDIX A88 BROOKS 7/6/2016 INFORMATION REQUEST [¶ 7(p); Jt. Exh. 83] 1. A copy of Ms. Brooks’ personnel file; 2. Copies of any and all Employer communications regarding the underlying issue for which Ms. Brooks received the [June 27, 2016] discipline, including management notes regarding obser- vations and review of Ms. Brooks’ interpreting skills and profes- sional conduct during customer interface; 3. Copies of any and all reports that substantiate the allegations of repeated disconnects; 4. Verification that the Ares/Orion software technology and hardware technology provided to Ms. Brooks to process calls are free of technical abnormalities; 5. Copies of all complaints lodged by the customer who com- plained against Ms. Brooks in order to ascertain potential pat- terns of the complainant (chronic complainer, nature of com- plaints, etcetera); 6. Copies of any and all past customer commendations of Ms. Brooks’ customer service and interpreting skills; 7. Copies of past discipline issued at SDCC for customer com- plaints; and 8. Copies of past discipline issued (minus identifiable infor- mation) including dates, at all other centers for customer com- plaints. STERLING 7/14/2016 INFORMATION REQUEST [¶ 7(q); Jt. Exh. 90] 1. All documents relied on in deciding to discipline Sterling; 6. Documents reflecting any training given to the person or per- sons who investigated the complaints that led to Sterling’s disci- pline; 14. Copies of all complaints lodged by those customers who complained against Sterling during the last 12 months; 16. Copies of customer complaints for all VIs, enterprise wide, for the last 12 months; and 17. For each of the customer complaints identified in response to Item 16, copies of the discipline issued to employees for the customer complaints received during the last 12 months. WILSON 7/14/2016 INFORMATION REQUEST [¶ 7(r); Jt. Exh. 94] 1. All documents on Respondent relied on in deciding to disci- pline Wilson; 6. Documents reflecting any training given to the person or per- sons who investigated the complaints that led to the discipline of Mr. Wilson; 88 For ease of reference, the numbering of individual requests herein refers to that of the respective underlying information request. 14. Copies of all complaints lodged by those customers who complained against Mr. Wilson during the last 12 months; 16. Copies of customer complaints for all VIs, enterprise wide, for the last 12 months; and 17. For each of the customer complaints identified in response to Item 16, copies of the discipline issued to employees for the customer complaints received during the last 12 months. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT do anything to prevent you from exercising the above rights. WE WILL NOT maintain, in our Employee Handbook, or any- where else, the following rules that you would reasonably under- stand to prohibit you from exercising the above rights: EMPLOYMENT RECORDS Purple maintains a personnel file for each employee. The file includes confidential information such as your job application, resume, documentation of performance appraisals and salary increases, and other employment records. You have a right to inspect certain documents in your personnel file, as provided by law, in the presence of a Human Resources representative at a mutually convenient time. No copies of documents in your file may be made, with the exception of documents that you have previously signed. You may add your comments to any disputed item in the file. INTERNET, INTRANET, VOICEMAIL AND ELECTRONIC COMMUNICATION POLICY Prohibited activities Employees are strictly prohibited from us- ing the […] email systems […] in connection with any of the following activities: 2. Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company. 5. Sending uninvited email of a personal nature. PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 61 9. Distributing or storing […] solicitations […] or other non- business material or activities. WE WILL NOT promise you that you will receive all the benefits obtained by the Union in its collective-bargaining agreement covering employees at our unionized facilities. WE WILL NOT tell you that it would be futile for you to select the Union as your bargaining representative, including by an- nouncing that we reached an agreement with the Union for a con- tract that offers substantially the same as what employees in non- unionized centers currently receive without having to pay dues. WE WILL NOT label our Disciplinary Action Reports “Confi- dential.” WE WILL NOT in any other manner interfere with your rights under Section 7 of the Act. WE WILL rescind the overly-broad and discriminatory rules and directives listed above. WE WILL rescind the unlawful provisions, policies, and rules set forth above from our Employee Handbooks and Disciplinary Action Report forms. WE WILL furnish you with inserts for the current Employee Handbook that advise that the unlawful provisions have been re- scinded; or wE WILL publish and distribute revised Employee Handbooks that do not contain the unlawful provisions. WE WILL distribute to supervisors and managers at all of our facilities revised Disciplinary Action Report forms that are not labeled “Confidential” and will begin using those revised forms when it is necessary to issue discipline to employees. WE WILL, within 14 days of the Board’s Order, notify all em- ployees to whom we issued Disciplinary Action Reports labeled “Confidential,” that they are not required to keep their Discipli- nary Action Reports confidential and may freely discuss them with other employees, labor organizations, and government agencies, if they wish to do so. PURPLE COMMUNICATIONS,INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS,LLC D/B/A ZVRS The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-179794 or by using the QR code be- low. 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. APPENDIX C NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT do anything to prevent you from exercising the above rights. WE WILL NOT maintain, in our Employee Handbook, or any- where else, the following rules that you would reasonably under- stand to prohibit you from exercising the above rights: EMPLOYMENT RECORDS Purple maintains a personnel file for each employee. The file includes confidential information such as your job application, resume, documentation of performance appraisals and salary increases, and other employment records. You have a right to inspect certain documents in your personnel file, as provided by law, in the presence of a Human Resources representative at a mutually convenient time. No copies of documents in your file may be made, with the exception of documents that you have previously signed. You may add your comments to any disputed item in the file. INTERNET, INTRANET, VOICEMAIL AND ELECTRONIC COMMUNICATION POLICY Prohibited activities Employees are strictly prohibited from us- ing the […] email systems […] in connection with any of the following activities: 2. Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company. 5. Sending uninvited email of a personal nature. 9. Distributing or storing […] solicitations […] or other non- business material or activities. PACIFIC MEDIA WORKERS GUILD, THE NEWSPAPER GUILD—COMMUNICATION WORKERS OF AMERICA, LOCAL 39521 (the Union) is the employees’ representative in dealing with us regarding wages, hours and other working conditions of the employees in the following units (the unit employees): All full-time and flex staff Video Interpreters (VIs) employed by Respondents at their Denver, Colorado facility, but exclud- ing all other employees, center assistants, confidential employ- ees, managers, office clerical employees and guards, profes- sional employees and supervisors as defined by the National Labor Relations Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 62 All full-time and flex staff Video Interpreters employed by Re- spondents in Tempe, Arizona, but excluding all other employ- ees, center assistants, confidential employees, managers, office clerical employees and guards, professional employees and su- pervisors as defined by the National Labor Relations Act. All full-time and flex staff Video Interpreters (VIs) employed by Respondents at their facility located in Oakland, California, but excluding all other employees, center assistants, confiden- tial employees, managers, office clerical employees and guards, professional employees and supervisors as defined by the National Labor Relations Act. WE WILL NOT selectively and disparately enforce the above rule about NON- SOLICITATION AND NON- DISTRIBUTION OF LITERATURE by prohibiting employees from leaving materials related to the Union in the break room, while permitting employees to leave materials not related the Union in the break room. WE WILL NOT selectively and disparately enforce the above INTERNET, INTRANET, VOICEMAIL AND ELECTRONIC COMMUNICATION POLICY by using it to prohibit employees from engaging in activities to join, support, or assist the Union, while permitting employees to use those systems and equipment for other non-business activities. WE WILL NOT announce and maintain an overly-broad and dis- criminatory rule or directive prohibiting employee-stewards from using our e-mail system for communicating with employ- ees in our call centers regarding the Union. WE WILL NOT label our Disciplinary Action Reports “Confi- dential.” WE WILL NOT threaten you with negative consequences of any kind because of your union activities, the union activities of other employees, or the Union’s performance of its role as your col- lective-bargaining representative, including by threatening to in- vestigate employees involved in teaming reports, in response to the Union’s request for information as part of a grievance inves- tigation. WE WILL NOT ask you about your union support or activities or the union support or activities of other employees. WE WILL NOT watch you to discover your union activities or make it appear that we are doing so. WE WILL NOT promise you benefits, including future promo- tional opportunities if you engage in surveillance of employees’ Union activities. WE WILL NOT disparage the Union, including by telling you that it has not done anything for you. WE WILL NOT tell you that your support for the Union is futile, because the collective-bargaining agreement it bargained for them had “done nothing” for you. WE WILL NOT tell our non-represented employees that it would be futile for them to select the Union as their bargaining repre- sentative, including by announcing we reached an agreement with the Union for a contract that offers substantially the same as what our non-represented employees currently receive with- out having to pay dues. WE WILL NOT promise non-represented employees that they will receive all the benefits obtained by the Union in its collec- tive-bargaining agreements covering unit employees. WE WILL NOT deny your request to be represented by a Union representative of your choice during an interview you reasonably believe may result in discipline (an investigatory meeting), im- properly restrict your selected Union representative’s ability to provide assistance and counsel to you, including by requiring her or him to remain silent while you are questioned by management. WE WILL NOT announce and maintain overly-broad and dis- criminatory rules or directives that improperly restrict your se- lected Union representative’s ability to provide assistance and counsel to you in an investigatory meeting, including rules or directives that prohibit employee-stewards from:  meeting with you on the VRS floor to prepare for an investigatory interview;  objecting to clarify a question you are asked before you answer it;  interrupting in a non-aggressive or adversarial manner while you are being questioned by management;  elaborating, providing information or otherwise ex- plaining your conduct while you are being questioned by management;  standing or using “intimidating body language” during an investigatory interview; and  making sarcastic or “snide” comments during an in- vestigatory interview. WE WILL NOT remove, or direct employees to remove, union- provided food, pro-union displays or pro-union decorations from employee break rooms; WE WILL NOT direct employees to remove pro-union decora- tions from employee workstations; WE WILL NOT announce and maintain overly-broad rules and discriminatory rules or directives that prohibit you from solicit- ing in work areas or displaying symbols of Union loyalty at work; WE WILL NOT fail and refuse to recognize and bargain in good faith with the Union as the exclusive representative of employees in the Units. WE WILL NOT fail to continue in effect all the terms and con- ditions of our collective- bargaining agreements with the Union, without the Union’s consent, including by:  ceasing to pay employees in the Units who were hired before August 2010 a differential for commu- nity interpreting work after they converted from full- time to flex-time status; and  ceasing to deduct dues from pay earned by Unit em- ployees for community interpreting work. WE WILL NOT make changes to the wages, hours, and other terms and conditions of employment of unit employees, without notifying the Union or affording the Union an opportunity to bar- gain over this conduct and/or the effects of this conduct, includ- ing by requiring employee-stewards to remove union announce- ments from break-room tables’ or by announcing and maintain- ing overly-broad and discriminatory rules and directives prohib- iting you from: PURPLE COMMUNICATIONS, INC. AND ITS SUCCESSOR AND JOINT EMPLOYER CSDVRS, LLC 63  using break rooms for pro-union activities and/or plac- ing union-related materials in break rooms (other than on designated union bulletin boards);  conducting union business on “work place property”;  engaging in union conduct, including placing pro-un- ion food, displays or other items in break rooms with- out prior authorization by management;  displaying balloons and other pro-union paraphernalia in working areas; and  meeting with your selected representative on the VRS floor to prepare for an investigatory interview;  soliciting in work areas, other than the display of per- sonal effects;  displaying small symbols of union loyalty, except in designated areas; and  displaying larger symbols and displays of union loy- alty in any areas. WE WILL NOT fail and refuse to provide, or unreasonably de- laying in providing, the Union with requested information that is necessary for and relevant to the Union’s performance of its du- ties as the exclusive collective bargaining representative of the Units, or unreasonably delay in providing such information. WE WILL NOT impose new rules or directives, including the overly-broad and discriminatory rules and directives listed above, because our employees formed, joined, and assisted the Union and engaged in concerted activities, and to discourage em- ployees from engaging in these activities. WE WILL NOT in any other manner interfere with your rights under Section 7 of the Act. WE WILL rescind the overly-broad and discriminatory rules and directives listed above. WE WILL rescind the unlawful provisions, policies, and rules set forth above from our Employee Handbooks and Disciplinary Action Report forms. WE WILL furnish you with inserts for the current Employee Handbook that advise that the unlawful provisions have been re- scinded; or WE WILL publish and distribute revised Employee Handbooks that do not contain the unlawful provisions. WE WILL distribute to supervisors and managers at all of our facilities revised Disciplinary Action Reports forms that are not labeled “Confidential” and will begin using those revised forms when it is necessary to issue discipline to employees. WE WILL, within 14 days of the Board’s Order, notify all em- ployees to whom we issued Disciplinary Action Reports labeled “Confidential,” that they are not required to keep their Discipli- nary Action Reports confidential and may freely discuss them with other employees, labor organizations, and government agencies, if they wish to do so. WE WILL permit employees to leave materials related to the Union in the break room at our facilities, in the same manner that we permit employees to leave materials unrelated to the Union in the break room at our facilities. WE WILL recognize and bargain in good faith with the Union as the exclusive representative of employees in the Units. WE WILL, within 14 days of the Board’s Order, provide the Union with the documents and information it requested, includ- ing:  names and rate amounts for unit employees paid a dif- ferential for performing community interpreting work;  documents it requested regarding the closure of the San Diego call center in the Summer of 2016;  documents it requested (about the following dates) re- lating to discipline issued to: Wayne Wilson (July 14, 2016), Ava Sterling (July 14, 2016), Nora Maschue (November 9, 2016);  documents we have not already provided in response to the Union’s request on about July 6, 2016 relating to the discipline of Margie Brooks. WE WILL, upon request of the Union, resume paying employ- ees in the Units who were hired before August 2010 a differential for community interpreting work after they converted from full- time to flex-time status, and WE WILL make any employee who lost pay as a result of our failure to pay such a differential, plus interest compounded daily, including through compensation for the adverse tax consequences, if any, of receiving a lump-sum backpay award. WE WILL, compensate any unit employee who receives back- pay as a result of the foregoing unlawful change in terms and conditions of employment, for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file a report with the Social Security Administration allocating the backpay awards to the appropriate calendar quarters for each em- ployee. WE WILL, upon request of the Union, resume deducting dues from pay earned by Unit employees for community interpreting work and WE WILL compensate the Union for the dues we failed to deduct from amounts paid to bargaining unit employees for time spent performing community interpreting work, at no cost to you. PURPLE COMMUNICATIONS, INC. AND ITS SUCESSOR AND JOINT EMPLOYER CSDVRS,LLC D/B/A ZVRS The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-179794 or by using the QR code be- low. 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. APPENDIX D EXPLANATION OF RIGHTS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Employees covered by the National Labor Relations Act have DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 64 the right to join together to improve their wages and working conditions, including by organizing a union and bargaining col- lectively with their employer, and also the right to choose not to do so. This Explanation of Rights contains important infor- mation about your rights under this Federal law. The National Labor Relations Board has ordered your employer, PURPLE COMMUNICATIONS, INC. and its Successor and Joint Employer CSDVRS, LLC d/b/a ZVRS, to provide you with this Explanation of Rights to describe your rights and to provide examples of illegal behavior. Under the National Labor Relations Act, you have the right to: • Organize a union to negotiate with your employer concerning your wages, hours, and working conditions. • Support your union in negotiations. • Discuss your wages, benefits, other terms and conditions of employment, and collective-bargaining negotiations with your coworkers or your union. • Take action with one or more coworkers to improve your working conditions. • Choose not to do any of these activities. It is illegal for your employer to: • Threaten you with job loss or loss of pay or benefits, if you support a union or act in support of collective bargaining. • Remove, or direct you to remove, union-provided food, pro- union displays or pro-union decorations from employee break rooms. • Deny your request to be represented by a union representative of your choice during an interview you reasonably believe may result in discipline. • Improperly restrict your selected union representative’s abil- ity to provide you with assistance and counsel in such a meet- ing. • Make unilateral changes in your terms and conditions of em- ployment (such as pay differentials and dues withholding) without first providing your union with notice of the proposed changes and affording the union an opportunity to bargain about the changes, except in certain situations. • Impose new rules or directives because you formed, joined and assisted the union that represents you, or because you took action with one or more coworkers to improve your working conditions, or to discourage you from doing so. • Warn, suspend, discharge, transfer or eliminate your work because you have supported the union or acted in support of collective bargaining. It is also illegal for your employer to threaten to do any of these things. • Upon a request by the union, your employer is required to provide information to the union that it needs to do its job as your representative, including documents it requests in connec- tion with a grievance over employee discipline. • Your employer must honor any collective-bargaining agree- ment that it reaches with your union. • Your employer cannot retaliate against you if you participate or assist your union in collective bargaining. Illegal conduct will not be permitted. The National Labor Rela- tions Board enforces the Act by prosecuting violations. If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, gener- ally within 6 months of the unlawful activity. You may ask about a possible violation without your employer or anyone else being informed that you have done so. The NLRB will conduct an investigation of possible violations if a charge is filed. Charges maybe filed by any person and need not be filed by the employee directly affected by the violation. You can contact the NLRB’s regional office, located at: The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-179794 or by using the QR code be- low. 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.