IGT d/b/a International Game Technology

370 NLRB No. 50 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. IGT d/b/a International Game Technology and Inter- national Union of Operating Engineers Local Un- ion 501, AFL-CIO. Cases 28–CA–166915, 28– CA–173256, 28–CA–174003, and 28–CA–174526 November 24, 2020 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS KAPLAN, EMANUEL, AND MCFERRAN On March 20, 2019, the National Labor Relations Board issued an Order Remanding1 in light of the Board’s deci- sion in The Boeing Co., 365 NLRB No. 154 (2017), which issued while this case was pending before the Board. Spe- cifically, the Board remanded the allegation that the Re- spondent’s maintenance of a nondisparagement provision in its Separation Agreement and General Release (“Agree- ment”) violated Section 8(a)(1) of the National Labor Re- lations Act. In its Order Remanding, the Board instructed the judge to address the allegation “affected by” Boeing, supra.2 On January 29, 2020, Administrative Law Judge Jeffrey D. Wedekind issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Re- spondent filed a reply brief.3 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Supplemental Decision and Or- der. The General Counsel alleges that the Respondent vio- lated Section 8(a)(1) of the Act by maintaining an “overly- broad” nondisparagement provision in the Agreement, 1 2019 WL 1314930. 2 The Board severed and retained the issue in an August 24, 2018 Decision and Order reported at 366 NLRB No. 170 (2018), in which the Board found that the Respondent violated Sec. 8(a)(5) and (1) by failing and refusing to bargain over subcontracting and Sec. 8(a)(1) for threat- ening employees during contract negotiations with a loss of overtime. On February 13, 2019, the Board issued a notice to show cause why the remaining complaint allegation should not be remanded to the adminis- trative law judge. No party filed a response. 3 The General Counsel and the Respondent agreed that there was no need to reopen the record and filed briefs to the judge addressing the allegation under Boeing. The General Counsel requests that the Board find that the Respondent failed to file exceptions properly or timely because it filed its exceptions brief with the Regional Director instead of the Board and did not correct its misfiling. We construe the request as a motion to strike the which the Respondent sometimes offers to lawfully sepa- rated employees. The judge found that the provision was unlawful as alleged. For the reasons explained below, we reverse. The Respondent is a multinational company that assem- bles, installs, removes, services, and repairs gaming ma- chines. It has a practice of offering the Agreement to em- ployees terminated as a result of the elimination of their positions. The Agreement offers postemployment bene- fits to employees who agree “to release IGT from all claims relating to [their] employment” and to refrain from certain postemployment conduct.4 Section 3 of the Agree- ment, titled, “Conditional Severance Payments and Bene- fits,” describes the benefits, including a 2-week salary continuation, outplacement assistance, and extended med- ical, dental, and vision coverage, to be granted upon exe- cution of the Agreement. Section 8 of the Agreement is the allegedly unlawful “Non-Disparagement” provision, which states: You will not disparage or discredit IGT or any of its af- filiates, officers, directors and employees. You will for- feit any right to receive the payments or benefits de- scribed in Section 3 if you engage in deliberate conduct or make any public statements detrimental to the busi- ness or reputation of IGT. The judge found this provision unlawful under the anal- ysis set forth in Boeing.5 He found that, because the pro- vision is not limited to disparaging remarks that are mali- cious or reckless, employees who receive the Agreement would reasonably interpret the provision to prevent them from making critical public statements about the Respond- ent’s employment terms or practices, and that, therefore, the provision would have “a broad potential impact” on employee Section 7 rights. He concluded that the Re- spondent’s interest in protecting against malicious or false statements that disparage its products and services is in- sufficient to outweigh such an impact. Respondent’s exceptions and deny it. Although the Respondent filed its exceptions brief with the incorrect Board office, it did so by the filing deadline. When the Respondent attempted to correct the misfiling, the Executive Secretary notified it that the original filing was accepted as timely. In these circumstances, we will accept the Respondent’s excep- tions brief. See, e.g., Eldeco, Inc., 336 NLRB 899, 900 (2001) (Board accepts response to notice to show cause, which was timely but improp- erly filed with the Regional Director). 4 The General Counsel does not allege that the release from claims is unlawful. 5 Under Boeing, a facially neutral rule or policy must be evaluated in such a way as to strike a proper balance between the asserted business justifications for the rule and the invasion of employee rights in light of the Act and its policies, viewing the rule or policy from the employees’ perspective. Boeing, supra, slip op. at 3. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Recently, in Baylor University Medical Center, 369 NLRB No. 43 (2020), the Board dismissed an allegation that the respondent violated Section 8(a)(1) by offering departing employees an opportunity to sign separation agreements containing allegedly unlawful provisions in exchange for severance pay and postemployment benefits to which they otherwise would not have been entitled. The Board rejected the judge’s application of Boeing to the separation agreement and affirmed that Boeing only ap- plies to allegedly unlawful work rules establishing condi- tions of employment. Id., slip op. at 1.6 The Board ex- plained that the separation agreement differed from a work rule in two fundamental ways: First, the agreement is not mandatory; signing it was not a condition of continuing employment, as it was optional and applied only in the event of separation. Second, the agreement exclusively pertains to postemployment ac- tivities and has no impact on terms and conditions of em- ployment or any accrued severance pay credit or benefits arising out of the employment relationship that the Re- spondent would be obligated to pay regardless of whether a departing employee signed. Id. The Board concluded that the mere proffer of the agree- ment was not coercive and dismissed the allegation. 6 Citing Boeing, supra, slip op. at 14–16 (Boeing applies to “facially neutral policies, rules, or handbook provisions”). 7 Although we found in our original decision that the Respondent unlawfully refused to bargain over a subcontracting decision and threat- ened employees, during bargaining, with a loss of overtime, such viola- tions do not support a finding that the Respondent has discriminated against employees for engaging in Sec. 7 activity. See Baylor University, supra, slip op. at 2 fn. 6. 8 Our dissenting colleague argues that we err in relying on Baylor University, supra, because, in her view, that case was wrongly decided. We need not repeat the full rationale for the Board’s holding in Baylor University. We emphasize, however, that the cases our colleague pri- marily relies on—Shamrock Foods, supra; Clark Distribution Systems, 336 NLRB 747 (2001); and Metro Networks, 336 NLRB 63 (2001)—do not compel a different result. Unlike in those cases, the severance agree- ments here and in Baylor University were not offered under circum- stances that could be considered coercive or that in any way restricted the free will of departing employees to accept or decline their terms. See, e.g., Shamrock Foods, slip op. at 3 fn. 12 (finding provisions of a sepa- ration agreement proffered to an unlawfully discharged employee, in the context of numerous egregious unfair labor practices, to be unlawful); accord Clark Distribution Systems, supra; Metro Networks, supra. Fur- ther, the Board overruled those cases to the extent they suggested it is “invariably unlawful to offer employees a severance agreement that in- cludes a nonassistance clause” or other similar prohibitions. Baylor Uni- versity, slip op. at 2 fn. 6 (emphasis added). Nevertheless, our colleague finds that the mere offer of a quid pro quo separation agreement has “in- herent coercive potential” and is therefore unlawful. This amorphous standard is premised on an overbroad and mistaken conception of the scope of Sec. 7 rights that cannot be waived—one emphatically rejected This case similarly involves a separation agreement of- fered to departing employees, as opposed to a work rule or policy that establishes conditions of employment. As in Baylor University, a departing employee’s acceptance of the Respondent’s Agreement is entirely voluntary. Fur- ther, any benefits to which the employee would already have been entitled as consideration for the work she per- formed as an employee of the company are unaffected by the employee’s decision whether or not to accept the prof- fered Agreement. Moreover, this case does not involve 8(a)(3) allegations or evidence of other unlawful discrim- ination, nor is there evidence that the Respondent prof- fered the Agreement under circumstances that would rea- sonably tend to interfere with the separating employees’ exercise of their own Section 7 rights or those of their coworkers.7 See Baylor University, supra, slip op. at 2 & fn. 6 (citing Shamrock Foods Co., 366 NLRB No. 117, slip op. at 3 fn. 12 (2018), enfd. mem. 779 Fed.Appx. 752 (D.C. Cir. 2019) (per curiam)).8 In conclusion, because the Agreement is entirely volun- tary, does not affect pay or benefits that were established as terms of employment, and has not been proffered coer- cively, we find that the nondisparagement provision would not tend to interfere with, restrain, or coerce em- ployees in the exercise of their rights under the Act.9 Ac- cordingly, we reverse the judge and dismiss the allega- tion.10 by the Supreme Court in Epic Systems v. Lewis, 138 S.Ct. 1612 (2018). It also relies on the equally mistaken belief—which the Board has re- jected – that employees necessarily view every employer document or rule through the prism of Sec. 7. See L.A. Specialty Produce Co., 368 NLRB No. 93, slip op. at 2 (2019) (citing T-Mobile USA, Inc. v. NLRB, 865 F.3d 265, 271 (5th Cir. 2017)). Finally, we disagree with our dissenting colleague’s suggestion that the nondisparagement provision at issue here would be unlawful under Boeing, and her attempt to distinguish Epic Systems and L.A. Specialty Produce on that basis. See Motor City Pawn Brokers Inc., 369 NLRB No. 132, slip op. at 5–7 (2020) (finding work rule with substantially sim- ilar language lawful). 9 The standard for analyzing settlement agreements that resolve spe- cific labor disputes is not applicable here, where there is no evidence that the Respondent proffered the Agreement to any separating employees for such purposes. See Baylor University, supra, slip op. at 2 fn. 7; S. Freed- man & Sons, Inc., 364 NLRB No. 82 (2016). 10 Although the judge suggested that Boeing may not provide the ap- plicable analysis for a provision in a separation agreement, he declined to reach that question because he determined that the Board had re- manded the issue for reconsideration only under Boeing. The judge’s interpretation of the Order Remanding was not unreasonable, as that or- der referred to the remanded allegation as “the above complaint allega- tion affected by Boeing.” And this was an accurate statement, in the sense that this case, which was originally litigated in part under decisions applying prong one of Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), was “affected” by Boeing when Boeing overruled that stand- ard. However, the Order Remanding did not direct the judge and parties to simply apply Boeing in place of prong one of Lutheran, and nothing in the remand Order precluded the parties from addressing how Boeing’s IGT D/B/A INTERNATIONAL GAME TECHNOLOGY 3 ORDER The allegation that the Respondent unlawfully main- tained a nondisparagement provision in its Separation Agreement and General Release is dismissed. Dated, Washington, D.C. November 24, 2020 ______________________________________ Marvin E. Kaplan, Member ______________________________________ William J. Emanuel, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER MCFERRAN, dissenting. Until the Board’s recent decision in Baylor University Medical Center,1 it was well established that severance agreements requiring employees to sign away their rights under the National Labor Relations Act are facially unlaw- ful unless narrowly tailored. Baylor wrongly broke with precedent, and the problem with its approach are obvious. It ignores the coercive potential that is inherent in any applicability to “policies, rules, or handbook provisions” should be inter- preted in the context of the separation agreement here. See Boeing, 365 NLRB No. 154, slip op. at 14. In any event, Baylor University, which issued after the Order Remanding and the judge’s supplemental decision, is directly applicable and compels dismissal of the remaining allegation. 1 369 NLRB No. 43 (2020). I was not a member of the Board when Baylor was decided; otherwise, I would have dissented. My prior Board term ended on December 16, 2019, and my current term began on August 10, 2020, after Baylor issued. 2 National Licorice Co. v. NLRB, 309 U.S. 350, 360-361 (1940). 3 See, e.g., M & M Affordable Plumbing, Inc., 362 NLRB 1303, 1307–1308 (2015) (discussing federal labor law prohibition against “yel- low dog” contract). See also Velox Express, Inc., 368 NLRB No. 61, slip op. at 16 fn. 15 (2019) (dissenting opinion) (collecting cases). 4 In John C. Mandel Security Bureau, 202 NLRB 117, 119 (1973), for example, the Board found unlawful a settlement providing reinstate- ment conditioned on the employee’s promise not to file Board charges in the future or engage in protected activity. In Metro Networks, 336 NLRB 63, 64–67 (2001), the Board similarly found an agreement barring em- ployees from filing a charge, participating in “any claim” against the em- ployer, or communicating with anyone “concerning your employment” unlawful. In Clark Distribution Systems, 336 NLRB 747, 748-749 (2001), an agreement prohibiting the employees from participating in “any claim against the company” was again found to violate Sec. 8(a)(1). In Ishikawa Gasket America, 337 NLRB 175, 176 (2001), affd. 354 F.3d 534 (6th Cir. 2004), the Board found a settlement barring the employee from “engag[ing] in any conduct which is contrary to the Company's in- terests in remaining union-free” unlawful. And more recently, in Sham- rock Foods Co., 366 NLRB No. 117, slip op. at 2-3 & fn.12 (2018), enfd. 2019 WL 3229142, 779 Fed. Appx. 752 (D.C. Cir. 2019), an agreement was found unlawful because it would have prevented the employee from providing assistance to former coworkers, disclosing information to the agreement requiring workers not to engage in protected concerted activity, if they wish to receive the benefits of the agreement. Every such agreement, regardless of the circumstances, clearly threatens to “interfere with, re- strain, or coerce employees” in the exercise of their statu- tory rights, violating Section 8(a)(1) of the Act. Because Baylor is completely contrary to statutory policy, and be- cause the majority thus errs in applying it here, I dissent. I. It is helpful to briefly review the law as it stood when Baylor was decided earlier this year. For nearly 80 years, as Supreme Court precedent establishes, it has been settled that individual employees may not broadly waive their rights under the National Labor Relations Act.2 The Board, with judicial approval, has repeatedly invalidated agreements between employers and employees that pur- port to restrict employees from engaging in activity pro- tected by the Act (the equivalent of the notorious “yellow dog” contract3) or from filing unfair labor practice charges with the Board,4 observing that the “future rights of em- ployees as well as the rights of the public may not be traded away in this manner.”5 The Board held that an em- ployer violates the Act if it even proposes an unlawful agreement to an employee, regardless of whether the em- ployee accepts the agreement.6 At least three Board Board, or making disparaging remarks that could be “detrimental” to the employer. Cf. Terex, 366 NLRB No. 162, slip op. at 3 (2018) (refusing to enforce settlement agreements containing unlawful restrictions, apply- ing standard of Independent Stave, 287 NLRB 740 (1987)). Only where a waiver “is narrowly tailored to the facts giving rise to the settlement and the employee receives some benefit in return for the waiver” is the agreement lawful. S. Freedman & Sons, 364 NLRB No. 82, slip op. at 2 (2016), enfd. 713 Fed.Appx. 152 (4th Cir. 2017). I dissented there because, in my view, the waiver was not narrowly tailored. Id., slip op. at 7-8 (dissenting opinion). 5 John C. Mandel Security Bureau, supra, 202 NLRB at 119. 6 See Shamrock Foods, supra, 366 NLRB No. 117, slip op. at 2–3 & fn. 12; Clark Distribution, supra, 336 NLRB at 748; Metro Networks, supra, 336 NLRB at 66–67. In Shamrock Foods, supra, the employer had presented a discharged employee with a separation agreement, which he was not required to sign and did not sign. The Board found that the employer had violated Sec. 8(a)(1), explaining that certain terms of the agreement “broadly required [the employee] to waive certain Sec[tion] 7 rights.” 366 NLRB No. 117, slip op. at 2–3 & fn. 12. The Board rejected the view of Member Kaplan that under the circumstances, “the mere proffer to [the employee] of the agreement … did not violate Sec[tion] 8(a)(1).” Id. (emphasis added). Instead, it adopted the administrative law judge’s conclusion of law that the Respondent had engaged in an unfair labor practice by “[o]ffering a ‘Separation Agreement and Release and Waiver” to [the] employee.” Id., slip op. at 1, 37. The Board ordered the employer to “[c]ease and desist from . . . [m]aintaining [the] Separation Agreement” and to “[r]escind the provisions in the Separation Agreement that” had been found unlawful. Id., slip op. at 4–5. In Clark Distribution, supra, Board adopted the finding of an admin- istrative law judge that the employer had violated Sec. 8(a)(1) “by con- ditioning acceptance of [a] severance package on a requirement DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 decisions—Metro Networks, Clark Distribution, and Shamrock Foods, supra—also had made clear that the le- gality of the severance agreement did not depend on the lawfulness of the underlying terminations or on the cir- cumstances surrounding the severance agreement. What mattered, rather, was whether the agreement, on its face, restricted the exercise of statutory rights.7 The rationale of these decisions was straightforward. An employer’s conduct violates Section 8(a)(1) of the Act if it has a reasonable tendency to (in the words of the stat- ute) “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [S]ection 7.”8 Condi- tioning the benefits under a severance agreement on the forfeiture of statutory rights obviously has a reasonable tendency to interfere with, restrain, or coerce the exercise of those rights. This is true whether or not the employee ultimately accepts the agreement, and whether or not the employee is actually coerced by the agreement. The em- ployer’s offer has an impermissible aim, the prospective waiver of Section 7 rights.9 And, of course, if the em- ployee does accept the agreement, then he might well comply with the unlawful provision in order to protect his severance benefits under the agreement and to avoid legal [contained in a settlement agreement] that employees not participate in the Board’s investigative process.” 336 NLRB at 748. Two employees accepted the package and signed the settlement agreement, but it is clear from the language of the Board’s decision—which refers to “condition- ing acceptance”—that the violation of Sec. 8(a)(1) did not depend on the employees’ acceptance of the agreement; rather, it was the offer that was unlawful. As the judge’s decision adopted by the Board explained, the General Counsel had “allege[d] that the terms of the severance agree- ment violated Section 8(a)(1).” Id. at 761. The judge agreed, explaining that the agreement was “an overbroad restriction of the [statutory] rights of employees.” Id. at 762. In Metro Networks, supra, the employer “offered and gave” a laid-off employee a severance agreement that included nonassistance and non- disclosure provisions. 336 NLRB at 66. The employee “did not sign” the agreement. Id. at 64. Because the challenged provisions would have “prohibit[ed] [the employee] from cooperating with the Board in . . . the investigation and litigation of unfair labor practice charges,” the Board found “unlawful the [employer’s] offer of [the] severance agreement.” Id. at 67. Notably, it found “no merit in the [employer’s] assertion that its proffer of the severance agreement was lawful because [the employee] did not sign it.” Id. at 67 fn. 20. The Board explained that the employer’s “proffer of the severance agreement . . . constituted an attempt to deter [the employee] from assisting the Board” and that the employee’s “con- duct in not signing the agreement [did] not render the [employer’s] con- duct lawful.” Id. (emphasis omitted). Accordingly, the Board ordered the employer to “[c]ease and desist from . . . [o]ffering employees a sev- erance agreement prohibiting assisting other employees with regard to any matter arising under the . . . Act and/or disclosing any information to the . . . Board with regard to any investigation or proceeding. Id. at 67–68. It also ordered the employer to “rescind the severance agreement offered to” the employee. Id. at 68. 7 In the most recent of the three decisions, Shamrock Foods, issued in 2018, the Board found that the employer had unlawfully discharged the employee to whom it offered an unlawful separation agreement, but the maintenance of the agreement was an independent violation of Sec. liability. Clark Distribution, supra, neatly illustrates the realization of the coercive potential always inherent in a facially unlawful settlement agreement. There, an em- ployee signed a settlement agreement in which he prom- ised not to “assist in the prosecution of any claims … against the company.” When the employee was contacted by a Board agent in the course of an unfair labor practice investigation, he refused to assist the agent, citing the agreement and expressing fear that he would lose his sev- erance pay and be sued by the employer.10 Thus, the set- tlement agreement actually interfered with the employee’s Section 7 right to assist the Board, with the Board’s ability to effectively administer the Act, and with the statutory right of other employees not to be subjected to the em- ployer’s unfair labor practices. To be sure, no such show- ing of actual coercion is required to establish a violation of Section 8(a)(1) in this context or any other, as the Board has long held.11 II. The Baylor decision discarded the Board’s long-estab- lished (and sound) analysis of unlawful severance agree- ments. But the Baylor Board offered no good reasons for its radically different approach. 8(a)(1), separately found and separately remedied, that was based en- tirely on certain provisions of the agreement that would have required the employee to waive Sec. 7 rights. 366 NLRB No. 117, slip op. at 2– 3 & fn. 12. In Clark Distribution, supra, decided in 2001, the Board found that a confidentiality provision in a severance agreement was unlawful on its face, because it effectively prohibited employees from assisting an unfair labor practice investigation by the Board. 336 NLRB at 749. That vio- lation was entirely separate from the issue of whether the employees who signed the agreement had been unlawfully terminated. See id. at 749– 750 (examining terminations). The Clark Distribution Board relied on Metro Networks, supra, also decided in 2001, to find the violation. In that case, severance agreements were found unlawful based on the terms of the agreement, independent of the discharge allegations in the case. 336 NLRB at 66–67. Indeed, the Metro Networks Board observed that an employer’s restriction on the exercise of a discharged employee’s Sec. 7 rights may be found unlawful even where the Board does “not address the question of whether the dis- charge was unlawful.” Id. at 66 (footnote omitted). 8 29 U.S.C. §158(a)(1). E.g., American Freightways Co., Inc., 124 NLRB 146, 147 (1959) (“It is well settled that the test of interference, restraint, and coercion under Section 8(a) (1) of the Act does not turn on the employer's motive or on whether the coercion succeeded or failed. The test is whether the employer engaged in conduct which, it may rea- sonably be said, tends to interfere with the free exercise of employee rights under the Act.”). 9 The Metro Networks Board accordingly referred to the employer’s offer of an unlawful severance agreement as an “attempt to deter” the exercise of Sec. 7 rights. 336 NLRB at 67 fn. 20. 10 336 NLRB at 748. To be sure, the Board’s decisions made clear that a violation in this context does not depend on actual (as opposed to potential) coercion. See, e.g., Metro Networks, supra, 336 NLRB at 67 fn. 20. 11 American Freightways, supra, 124 NLRB at 147. IGT D/B/A INTERNATIONAL GAME TECHNOLOGY 5 A. The body of the Baylor decision first rejects the admin- istrative law judge’s treatment of the severance agreement there as the equivalent of a work rule. That question is immaterial, however. The Board’s traditional approach to severance agreements containing unlawful provisions has never been based on the premise that such agreements are the equivalent of work rules.12 The cited differences between severance agreements and work rules, moreover, have no bearing on whether an unlawful provision has a reasonable tendency to coerce employees in the exercise of their Section 7 rights. Con- trary to the Baylor Board’s view, and as already explained, a severance agreement inherently has coercive potential even if the agreement is “not mandatory.”13 Even a broad voluntary waiver of statutory rights undermines the public purposes of the Act, which depend on the freedom of all employees to engage in Section 7 activity, and to support each other in doing so. Also contrary to the view of the Baylor Board, the co- ercive potential of an unlawful severance agreement is not somehow eliminated because it “exclusively pertains to postemployment activities and has no impact on terms and conditions of employment.” What matters for purposes of the Act, rather, is that the agreement purports to legally require the employee to forfeit his Section 7 rights. Those rights, as the Act makes explicit and as the Board has long held, do not depend on the existence of an employment relationship between the employee and the employer,14 and the Board has repeatedly affirmed that such rights ex- tend to former employees.15 B. After unhelpfully distinguishing a severance agreement from a work rule, the Baylor decision then refused to find a violation of the Act, observing that the General Counsel had not alleged that any employee to whom the severance agreement was proffered “was unlawfully discharged for conduct protected by the Act” or that the employer’s 12 The Baylor Board’s decision to treat severance agreements as dis- tinct from work rules does have an important consequence, however. It means that the Board will not apply the analytical framework for work rules established by The Boeing Co., 365 NLRB No. 154 (2017), and then modified in LA Specialty Produce Co., 368 NLRB No. 93 (2019). Notably, however, the Board does analyze mandatory arbitration agree- ments involving individual employees under the Boeing framework, in- validating agreements that require employees to forfeit rights under the Act, where not permitted by the Federal Arbitration Act. See, e.g., Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (2019) (finding ar- bitration agreement unlawful because it interfered with employees’ ac- cess to the Board). As I will explain, the Baylor Board broke with the Board’s traditional approach to severance agreements containing unlaw- ful provisions, but then provided no clear analytical framework as a sub- stitute. “proffers were made under any circumstances that would tend to infringe on the separating employees’ exercise of their own Section 7 rights or those of coworkers.”16 But as a review of pre-Baylor precedent shows, the Board had never required proof of either fact to establish a violation of Section 8(a)(1). Rather, as I have explained, the Board had always treated the legality of a severance-agreement provision as an entirely independent issue, turning exclu- sively on the language of the provision.17 The Baylor Board, in a footnote, addressed this prece- dent by abandoning it.18 The Board wrongly re-rational- ized the three key decisions (Shamrock Foods, Clark Dis- tribution, and Metro Networks), explicitly overruled Clark Distribution sua sponte, and limited all three decisions to their facts. According to the Baylor Board, in each of the three cases the employees to whom the agreements were offered had been discharged in violation of the Act. In other words, the employer in those cases had already demon- strated its willingness to retaliate against employees for engaging in Sec. 7 activity. Thus, it was reasonable to believe that further charges may have been filed or might be forthcoming and that the discharged employees might have relevant information they would wish to disclose to an investigating Board agent. Under those circum- stances, offering a severance agreement with a non-as- sistance clause would reasonably tend to interfere with the exercise of rights protected by the Act. 369 NLRB No. 43, slip op. at 2 fn. 6. No fair reading of any of the Board’s prior decisions yields this rationale. Indeed, the Baylor Board itself acknowledged the “categorical” hold- ing of Clark Distribution—that offering a severance agree- ment with an unlawful provision violates the Act—but as- serted, without real explanation, that “this holding is broader than necessary to safeguard Sec[tion] 7 rights” and so over- ruled the earlier decision.19 There is no support in logic, law, or policy for the ap- proach taken by the Baylor Board in reversing long- 13 Baylor, supra, 369 NLRB No. 43, slip op. at 1. 14 The Act confers Sec. 7 rights on statutory employees. Sec. 2(3) of the Act provides in relevant part that “[t]he term ‘employee’ shall include any employee, and shall not be limited to the employees of a particular employer.” 29 U.S.C. §152(3). 15 See Waco, Inc., 273 NLRB 746, 747 fn. 8 (1984); Little Rock Crate & Basket Co., 227 NLRB 1406, 1406 (1977); Briggs Manufacturing Co., 75 NLRB 569, 570 (1947). See, e.g., Cedars-Sinai Medical Center, 368 NLRB No. 83, slip op. at 8 fn. 7 (2019). 16 369 NLRB No. 43, slip op. at 2. 17 See fn. 6, supra. 18 Id., slip op. at 2 fn. 6. 19 Id. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 established precedent sua sponte. As explained, before Baylor, the Board consistently recognized that the coer- cive potential of an unlawful severance-agreement provi- sion is inherent in the agreement itself. It does not depend on an employer’s proclivity to violate the Act or on an em- ployee’s assessment of how likely the employer is to en- force the unlawful provision in the agreement. What mat- ters is simply that the employer’s agreement purports to create an enforceable legal obligation to forfeit Section 7 rights. It may be that if the employee was unlawfully fired, then the coercive potential of the agreement is even greater than it otherwise would be. But that possibility does not mean that the agreement itself has no meaningful coercive potential so long as the discharge was lawful. Whatever the circumstances, the agreement illegitimately conditions benefits on a forfeiture of Section 7 rights. Em- ployers should not be entitled to one free violation of the Act (proffering an unlawful severance agreement), based on the Board’s baseless assumption that a reasonable em- ployee would not fear a second violation from this partic- ular employer. The refusal of the Baylor Board to recognize as much is arbitrary. But the Baylor Board also failed to explain why —under a statute designed to protect employees in the ex- ercise of their rights—employers should be permitted to maintain severance agreements that contain unlawful pro- visions requiring employees to forfeit their rights. Baylor did not turn on an interpretation of the challenged provi- sion or a determination that the challenged provision was facially lawful. The decision, rather, held that absent 20 As explained (see fn. 12, supra), the Baylor Board rejected applica- tion of the analytical framework currently applied to work rules, which incorporates at least a limited (if badly tilted) balancing of employees’ Sec. 7 rights and employer interests in some circumstances. The Board’s current approach to work rules is deeply flawed (as I explained in dis- sents in Boeing and LA Specialty Produce, supra), but the Baylor ap- proach is even less protective of statutory rights. 21 See Prime Healthcare, supra, 368 NLRB No. 10, slip op. at 5–6. There, the Board found that “as a matter of law, there is not and cannot be any legitimate justification for provisions, in an arbitration agreement or otherwise, that restrict employees’ access to the Board or its pro- cesses.” Id. at 6. 22 Motor Vehicle Manufacturers Assn. v. State Farm Auto Mutual In- surance Co., 463 U.S. 29, 43 (1983). 23 Contrary to the majority, the Supreme Court’s decision in Epic Sys- tems v. Lewis, ___ U.S. ___, 138 S.Ct. 1612 (2018), has no bearing on the issue presented in cases like this one. The question here, as in Baylor, is whether an employer’s mere maintenance of an unlawful severance- agreement provision—a provision that could not be lawfully enforced to restrain protected Sec. 7 activity—is itself unlawful. In contrast, Epic Systems involved an entirely different issue: whether, in light of the Fed- eral Arbitration Act, an employer’s mandatory arbitration agreement re- quiring individual arbitration violated the National Labor Relations Act. The Court held that such an agreement was lawful. Its decision, then, does not address the legality of maintaining (but not enforcing) an un- lawful provision in an individual agreement. coercive circumstances, the employer was free to proffer even a facially unlawful provision. This cannot be right. An employer can have no legitimate interest in maintain- ing a facially unlawful provision in a settlement agree- ment, much less an interest that somehow outweighs the Section 7 rights of employees.20 Even the current Board has recognized as much in striking down employer-main- tained individual arbitration agreements that reasonably can be read to interfere with employees’ access to the Board.21 The Supreme Court has held that an agency’s action is arbitrary if the agency has “entirely failed to con- sider an important aspect of the problem.” 22 That was clearly the case in Baylor, which neither recognized nor addressed the inherent coercive potential of severance agreements that require employees to forfeit Section 7 rights.23 III. Here, the majority (the members of the Baylor Board) reflexively applies Baylor to find that the Respondent committed no violation of the Act by maintaining a non- disparagement clause in the severance agreement it of- fered terminated employees.24 That clause was unlawfully overbroad, for reasons that the administrative law judge here correctly explained. Under the Board’s traditional approach to unlawful severance-agreement provisions, the Board certainly would have found a violation of Section 8(a)(1) here. Instead, however, the majority reiterates Baylor’s flawed analysis in every respect, concluding that “because the [severance] [a]greement is entirely voluntary, does not Nor does LA Specialty, supra, a work-rules case also cited by the ma- jority, support the result here. Correctly or not, Baylor held that the standard applied to work rules does not apply to severance agreements (see fn. 12, supra). Of course, treating work rules and severance agree- ments the same would support finding a violation in this case: The Board has long held that the mere maintenance of an unlawful work rule is itself unlawful, even without evidence of enforcement. E.g., Farah Mfg. Co., 187 NLRB 601, 602 (1970), enfd. 450 F.2d 942 (5th Cir. 1971). The Board has adhered to that principle even as its approach to determining whether a rule is facially unlawful has shifted. See, e.g., Holy Cross Health d/b/a Holy Cross Hospital, 370 NLRB No. 16, slip op. at 12 (2020) (mere maintenance of unlawful rule was unlawful). To be sure, the issue here does not depend on how an employee would reasonably interpret a severance-agreement provision (or a work rule, the issue in LA Specialty), but instead on whether the mere maintenance of an unlaw- ful provision is itself unlawful. Even if LA Specialty were somehow rel- evant to this case, it was wrongly decided, as I explained in dissent. 368 NLRB No. 93, slip op. at 8–14. 24 The provision recites: You will not disparage or discredit [the employer] or any of its affiliates, officers, directors and employees. You will forfeit any right to receive the payments or benefits described in [the agreement] if you engage in deliberate conduct or make any public statements detrimental to the business or reputation of [the employer]. IGT D/B/A INTERNATIONAL GAME TECHNOLOGY 7 affect pay or benefits that were established as terms of em- ployment, and has not been proffered coercively,” there can be no violation, regardless of any possible illegality of the non-disparagement provision.25 For all the reasons I have explained, Baylor was wrongly decided. Today’s decision only makes bad law worse. Unfortunately, it reflects both the current Board’s eagerness to overrule settled precedent and its consistent refusal to recognize the potential chilling effect of em- ployer actions on the exercise of Section 7 rights by em- ployees.26 Accordingly, I dissent. Dated, Washington, D.C. November 24, 2020 ______________________________________ Lauren McFerran, Member NATIONAL LABOR RELATIONS BOARD Néstor M. Zárate Mancilla, Esq., for the General Counsel. Theo E. M. Gould, Esq. (Littler Mendelson, P.C.), for the Re- spondent Company. Adam Stern, Esq., for the Charging Party Union. SUPPLEMENTAL DECISION JEFFREY D. WEDEKIND, Administrative Law Judge. This case is on remand from the Board to reconsider whether the following nondisparagement provision, which was contained in a Separa- tion Agreement and General Release that the Respondent Com- pany sometimes offered to terminated employees prior to Janu- ary 25, 2016, violated Section 8(a)(1) of the National Labor Re- lations Act: WHEREAS, IGT and Employee wish to establish the terms of Employee’s separation from the Company. NOW, THEREFORE, in consideration of the premises and conditions set forth herein, the sufficiency of which is hereby acknowledged, IGT and Employee agree as follows: . . . . 8. NON-DISPARAGEMENT You will not disparage or discredit IGT or any of its affiliates, officers, directors and employees. You will forfeit any right to receive the payments or benefits described in Section 3 if you engage in deliberate conduct or make any public statements detrimental to the business or reputation of IGT. [GC Exh. 27.] The General Counsel’s May 31, 2016 consolidated complaint 25 The majority does not interpret the challenged non-disparagement clause or determine that the clause was facially lawful. Notably, the ma- jority also finds no coercive circumstances of the sort mistakenly de- manded by Baylor, although the Board in this case has found that the Respondent unlawfully refused to bargain over a subcontracting decision and threatened employees, during bargaining, with a loss of overtime – facts that might well heighten the coercive potential of the non- alleged that, by maintaining the foregoing “overly-broad provi- sion” in its separation agreement since June 30, 2015, the Com- pany was interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act (GC Exh. 1(v), pars. 5, 7). More specifically, in the opening statement at the June 29, 2016 hearing and in the August 10, 2016 posthearing brief, the General Counsel argued that the non- disparagement provision in the separation agreement was a fa- cially unlawful policy or rule under Lutheran Heritage Village- Livonia, 343 NLRB 646 (2004), and its progeny, including Quicken Loans, 359 NLRB 1201 (2013), reaffd. 361 NLRB904 (2014), enfd. 830 F.3d 542 (D.C. Cir. 2016), because employees would reasonably construe it as prohibiting them from criticizing the Company’s employment terms and practices. See Tr. 16–17, and Br. at 30–32. On November 15, 2016, I issued a decision finding that the Company violated Section 8(a)(1) of the Act by maintaining the nondisparagement provision in its separation agreement as al- leged. However, the Company filed exceptions, and in August 2018 and March 2019, respectively, the Board severed the alle- gation from the other 8(a)(1) and (5) allegations in the proceed- ing and remanded it for further consideration under Boeing Co., 365 NLRB No. 154 (2017).1 Boeing overruled Lutheran Herit- age and announced a new framework for analyzing facially neu- tral employer policies, rules, or handbook provisions. Specifi- cally, Boeing held that the Board will first analyze whether the facially neutral policy, rule or handbook provision, when reason- ably interpreted, would potentially interfere with the exercise of NLRA rights. If it would not, the policy, rule, or handbook pro- vision is lawful. If it would, the Board will weigh any adverse impact on NLRA-protected conduct against the employer’s le- gitimate justifications for maintaining the policy, rule, or hand- book provision. Applying this analysis, the Board found that the subject no-camera rule in that case was lawful. It also declared that certain other types of rules would be lawful, including rules requiring employees to abide by basic standards of civility in the workplace, and overruled previous Board decisions to the extent they held otherwise. Id., slip op. at 3–4.2 Following the Board’s remand, on October 17, 2019, the par- ties were invited to submit position statements addressing whether they wished to reopen the record to introduce additional evidence regarding the allegation. On October 25, the General Counsel filed a response stating that the Agency was satisfied with the original record and did not wish to introduce any addi- tional evidence. The Respondent Company did not file a re- sponse but advised in an October 27 email that it agreed with the General Counsel’s response. The Charging Party Union did not file a position statement or otherwise respond. Accordingly, the hearing record was not reopened. However, by order dated No- vember 4, the parties were given an opportunity to file briefs disparagement clause even under the Baylor approach, inasmuch as these unfair labor practices suggest hostility toward Sec. 7 activity. 26 See, e.g., Apogee Retail, 368 NLRB No. 144 (2019); LA Specialty Produce Co., supra; Boeing, supra. 1 See 366 NLRB No. 170 (Aug. 24, 2018) (severing), and 2019 WL 1314930 (March 20, 2019) (remanding). 2 See also Southern Bakeries, LLC, 368 NLRB No. 59, slip op. at 1 (2019) (summarizing the new Boeing framework). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 addressing the remanded allegation under the Boeing framework based on the original record. And the General Counsel and the Company filed such briefs on December 2, 2019. The General Counsel’s brief on remand makes essentially the same argument as the 2016 posthearing brief, albeit without re- lying on Lutheran Heritage and Quicken Loans. Specifically, the General Counsel argues: Employee critique of their employer is a core Section 7 right, subject only to the requirement that employees’ communica- tions not be so “disloyal, reckless or maliciously untrue as to lose the Act’s protection.” Emarco, Inc., 284 NLRB 832, 833 (1987); see NLRB v. Electrical Workers Local 1229 (Jefferson Standard Broadcasting Co.), 346 U.S. 464, 477 (1953), and Linn v. Plant Guards Local 114, 383 U.S. 53 (1966). Broad prohibitions against making statements that damage a com- pany’s reputation clearly encompass protected concerted com- munications. See Costco Wholesale Corp., 358 NLRB 1100 (2012); see also Knauz BMW, 358 NLRB 1754 (2012). Broad rules that prohibit disparaging the employer, absent limiting context or language, would cause employees to refrain from publicly criticizing employment problems, and therefore sig- nificantly burden protected activity. See Teletech Holdings, Inc., 342 NLRB 924, 931–32 (2004) (finding unlawful rule that employees were not to speak negatively about their job) (citing Lexington Chair Co., 150 NLRB 1328 (1965) (holding unlaw- ful rule prohibiting employees from criticizing company rules and policies), enfd. 361 F.2d 283, 287 (4th Cir. 1966)). Indeed, “[p]ublic statements by employees about the workplace are central to the exercise of employee rights under the Act . . . .” 364 NLRB No. 20, slip op. at 16 (2017) (then-Member Misci- marra, concurring in part, citing Valley Hospital Medical Cen- ter, Inc., 351 NLRB No. 88, slip op. at 4 (2007)). Respondent’s Non-Disparagement provision prohibits publicly criticizing Respondent or making statements regarding em- ployment issues such as labor disputes. Additionally, when reasonably construed, the non-disparagement provision would prevent any former employee from engaging in protected dis- cussions with current employees and third parties about work- ing conditions that continue to affect current employees. Such discussions are often a necessary part of employees’ efforts to bring about change in their working conditions. Respondent’s non-disparagement provision significantly burdens protected activity and is unlawful. The General Counsel further argues that the Company failed to assert or identify any legitimate business interest that out- weighs the interference with employees’ Section 7 rights. Ac- cordingly, the General Counsel contends that the nondisparage- ment provision of the separation agreement was unlawful under Boeing. (GC Br. 6–7.) 3 The Company’s brief on remand also cites an August 30, 2018 Gen- eral Counsel Division of Advice memo in Coastal Shower Doors, 12– CA–194162. However, that memo does not fully support the Company’s position. Compare Memo at 12 (Rule F) with Memo at 13–15 (Rule H). In any event, such memos “have no precedential value or dispositive ef- fect before the Board.” Longshoremen ILWU Local 12 (Southport Lum- ber Co.), 367 NLRB No. 16, slip op. at 1 n. 1 (2018). The Company, on the other hand, argues in its brief on remand that the nondisparagement provision in its separation agreement had no impact on employee Section 7 rights. First, as in its posthearing brief, the Company argues that provision had no such impact because the separation agreement was only offered after employees were informed that they would no longer be em- ployed by the Company (Tr. 192–193); there is no evidence that it was ever offered to an employee who had been unlawfully ter- minated; and it could not even arguably have been interpreted as applying to any existing employee of the Company. Second, the Company argues that it had no impact on employee Section 7 rights because [the] provision involves a basic standard of civility. It solely refers to conduct which is not covered by Section 7, such as disloyal statements which can disparage, discredit or be detri- mental and harm the business and reputation of IGT. The Board has found that “[o]therwise protected communications with third parties may be so disloyal, reckless, or maliciously untrue [as] to lose the Act’s protection. Valley Hospital Medi- cal Center, Inc., 351 NLRB 1250, 1252 (2007). Because em- ployees do not have the absolute right to disparage their em- ployers, the Board has found non-disparagement rules and pol- icies to be lawful when they address conduct that is reasonably associated with actions that fall outside the protection of the Act, such as conduct that is abusive, malicious, injurious, threatening, intimidating, coercing, profane, or unlawful. See e.g. Palms Hotel and Casino, 344 NLRB 1363, 1367-1368 (2005) (rule addressing “conduct which is injurious, offensive, threatening, intimidating, coercing, or interfering with” other employees).3 Further, the Company argues that it “has a legitimate interest in asking non-employees not to disparage or discredit IGT or any of its affiliates, officers, directors and employees.” Accordingly, the Company contends that the nondisparagement provision in its separation agreement was lawful under Boeing. (Br. 6–8.)5 The General Counsel has the better argument. First, Section 2(3) of the Act, 29 U.S.C. § 152(c), states that an “employee” under the Act “shall include any employee, and shall not be lim- ited to the employees of a particular employer, unless the Act explicitly states otherwise . . . .” This provision “expressed the conviction of Congress ‘that disputes may arise regardless of whether the disputants stand in the proximate relation of em- ployer and employee, and that self-organization of employees may extend beyond a single plant or employer’.” Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 192 (1941), quoting H.R. Rep. No. 1147, 74th Cong., 1st Sess., p. 9. Thus, it is “broad enough to include members of the working class generally.” Briggs Mfg. Co., 75 NLRB 569, 570 (1947). Second, the subject nondisparagement provision was clearly not a workplace civility rule. As indicated above, the provision 5 The Company’s brief on remand also argues that the nondisparage- ment provision in its revised separation agreement (R. Exh. 20), which became effective on January 25, 2016 (Tr. 489), contains a “savings clause” clarifying that it does not apply to Section 7 rights. However, the General Counsel does not allege that the revised provision is unlaw- ful, and it is not at issue in this case. See the GC’s posthearing brief at 32. IGT D/B/A INTERNATIONAL GAME TECHNOLOGY 9 was contained in a separation agreement that the Company only offered to employees who had been informed they would no longer be employed in its workplace. Further, the provision is not limited to maliciously or recklessly false statements by sep- arated employees that disparage IGT’s products or services. It prohibits “any public statements” by separated employees that “disparage” or “discredit” IGT “or any of its affiliates, officers, or directors”6 and/or are “detrimental to the business or reputa- tion” of the Company. Thus, the provision would reasonably be interpreted by employees to include statements that criticize IGT’s employment terms and practices or dispute the claims or defenses of the Company’s officers regarding those terms and practices, even if the statements are true or reasonably believed to be true. See, e.g., Valley Hospital, above, 351 NLRB at 1252– 1253 (distinguishing disloyal, reckless, or maliciously false statements by employees that disparage their employer’s prod- ucts or services, which are not protected by the Act, from state- ments related to a labor dispute regarding an employer’s terms and conditions of employment that the employee reasonably be- lieves to be true, which are protected by the Act), enfd. 358 6 The General Counsel does not challenge the provision to the extent it also prohibits disparaging or discrediting the Company’s “employees.” See the GC’s brief on remand at 5. 7 The General Counsel’s posthearing brief additionally argued that the nondisparagement provision was unlawful because it required termi- nated employees to forfeit their Section 7 rights in exchange for the ben- efits of the separation agreement, citing Clark Distribution Systems, 336 NLRB 747, 748 (2001), and Metro Networks, 336 NLRB 63, 64 (2001). The Board in those cases held that the employers unlawfully conditioned acceptance of their severance agreements on the signatory employee agreeing not to assist in any claims against them, as this would bar the signatory employee from assisting the Board’s investigation of charges filed by others. This argument is arguably more apt here as the alleged unlaw- ful provision was in a separation agreement rather than a work policy, rule, or handbook. See Shamrock Foods Co., 366 NLRB No. 117 (June 22, 2018), enfd. 779 Fed. Appx. 752, 755 (July 12, 2019). In Shamrock, the General Counsel argued that a sim- ilar nondisparagement provision that was contained in a separa- tion agreement the employer offered to an unlawfully terminated employee (Wallace) constituted an unlawfully overbroad work rule or policy under Lutheran Heritage. And the ALJ found that the nondisparagement provision of the separation agreement was unlawful based in part on Board decisions finding similar provi- sions in employer rules or policies unlawful. On exceptions, however, the Board held that the cases relied on by the ALJ were “inapposite” because they involved overbroad work rules and the separation agreement offered to Wallace was not a generally ap- plicable work rule but akin to a settlement. Further, consistent with that holding, the Board did not sever and remand the alle- gation involving the separation agreement along with other alle- gations in the case involving the employer’s handbook rules for reconsideration under Boeing, which had issued the previous year. Instead, the Board majority analyzed the nondisparage- ment provision of the separation agreement under Board prece- dent involving settlements; specifically, S. Freedman & Sons, Inc., 364 NLRB No. 82, slip op. at 2 (2016), which cited and followed Clark Distribution Systems and Metro Networks, Fed.Appx. 783 (9th Cir. 2009). Finally, the Company’s narrow interest in protecting against maliciously or recklessly false statements that disparage IGT’s products or services is clearly insufficient to outweigh such a broad potential impact on employee Section 7 rights. Accordingly, the provision was unlawful under the Boeing an- alytical framework. 7 CONCLUSIONS OF LAW 1. By maintaining, from at least June 30, 2015 until January 25, 2016, an overbroad nondisparagement provision in its Sepa- ration Agreement and General Release, the Company committed an unfair labor practice in violation of Section 8(a)(1) of the Act. 2. The Company’s unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY The appropriate remedy for the violation found is an order re- quiring the Company to cease and desist from its unlawful con- duct and to take certain affirmative action. Specifically, the Company must rescind the unlawfully overbroad above. Based on that precedent, the majority (Members Pearce and McFerran) affirmed the ALJ’s finding that the nondispar- agement provision in the separation agreement was unlawful on the ground that the provision was not narrowly tailored to the facts giving rise to the discharge of Wallace given that he had been discharged for an unlawful reason and the provision “broadly required him to waive certain Section 7 rights, includ- ing . . . making disparaging remarks or taking actions which would be ‘detrimental’ to” the employer.” Id. slip op. at 3 fn. 12. Member Kaplan concurred with the majority that the nondispar- agement provision of the separation agreement was not a gener- ally applicable work rule, but found that the employer’s “mere proffer” of the agreement containing that provision to Wallace was not unlawful “inasmuch as Wallace was the only employee involved, was not required to sign the separation agreement, and did not do so.” Id. However, this case is arguably distinguishable from Shamrock as the record indicates that the Company offered the separation agreement to more than one terminated employee and in more than one instance. See the testimony of Julie Doti, IGT’s director of human resources for global field services, Tr. 192 (“We typi- cally use the agreement when we have eliminated a person’s po- sition because the position is no longer needed . . . it’s our prac- tice to administer it when we eliminate positions.”). In addition, there is no evidence that the Company offered it to any unlaw- fully terminated employee. In any event, the Board here did not sever and remand the allegation regarding the nondisparagement provision in the Company’s separation agreement for reconsid- eration under Shamrock. Rather, the Board severed and re- manded it for reconsideration under Boeing. And that is the only issue the parties have addressed in their briefs on remand. Ac- cordingly, this supplemental decision on remand likewise only addresses the allegation under Boeing. See, e.g., Cassis Mgt. Corp., 324 NLRB 324, 325 fn. 5 (1997) (judge properly declined to address issue outside scope of Board’s remand order). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 nondisparagement provision in the Separation Agreement and General Release that it maintained and sometimes offered to em- ployees from at least June 30, 2015 until January 25, 2016, and notify all former employees who signed the separation agree- ment that it has done so and that the unlawfully overbroad non- disparagement provision will not be given effect.8 In addition, the Company must sign and post an official notice to employees advising them that it will not violate their Section 7 rights in the same or any like or related manner and will take the affirmative remedial action described above. The General Counsel’s brief on remand requests that the Company be re- quired to post the notice at all of its facilities nationwide “to rem- edy Respondent’s maintenance of the unlawful rule” (Br. 10), rather than at just the Las Vegas facility involved in this proceed- ing as ordered in the original decision. However, there is insuf- ficient record evidence that the separation agreement was main- tained nationwide or offered to or signed by any employees at any of the Company’s facilities other than the Las Vegas facility. Accordingly, the General Counsel’s request is denied. ORDER9 The Respondent, IGT, d/b/a International Game Technology, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining a nondisparagement provision in its Separa- tion Agreement and General Release that broadly states, without qualification, that signatory employees “will not disparage or discredit IGT or any of its affiliates, officers, directors and em- ployees” and “will forfeit any right to receive the payments or benefits [set forth in the agreement] if you engage in deliberate conduct or make any public statements detrimental to the busi- ness or reputation of IGT.” (b) 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) Within 14 days of the Board’s order, rescind the unlaw- fully overbroad nondisparagement provision in the Separation Agreement and General Release that it maintained and some- times offered to employees from at least June 30, 2015 until Jan- uary 25, 2016, and notify in writing all former employees who signed the separation agreement that it has done so and that the unlawfully overbroad nondisparagement provision will not be given effect. (b) Within 14 days after service by the Region, post at its 8 Although the Company revised the nondisparagement provision ef- fective January 25, 2016, there is no evidence that it ever advised any employees or former employees that it did so and that the previous pro- vision would not be given effect. Cf. National Indemnity Co., 368 NLRB No. 96, slip op. at 3 (2019) (finding it unnecessary to order rescission of an unlawful confidentiality agreement because the employer had already distributed a revised lawful agreement to employees, but ordering rescis- sion of an unlawful memo because, while the employer ceased distrib- uting the memo, “merely ceasing distribution of an unlawful work rule, without more, is insufficient to rescind the unlawful rule”). See also Passavant Memorial Area Hospital, 237 NLRB 138 (1978); and Ark Las Vegas Restaurant Corp. v. NLRB, 334 F.3d 99, 108 (D.C. Cir. 2003) facility in Las Vegas, Nevada, copies of the attached notice marked “Appendix”.10 Copies of the notices, 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 consecutive days in conspic- uous places including all places where notices to employees are customarily posted. In addition to physical posting of paper no- tices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If, during the pendency of these proceedings, Respondent has gone out of business or closed the facility involved in this proceeding, Respondent shall duplicate and mail, at its own expense, a copy of the notices to all current and former employees employed by Respondent at the closed facility at any time since June 30, 2015. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C., January 29, 2020 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we 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 maintain a nondisparagement provision in our Separation Agreement and General Release that broadly states, without qualification, that signatory employees “will not dispar- age or discredit IGT or any of its affiliates, officers, directors and employees” and “will forfeit any right to receive the payments (discussing the requirements of an effective repudiation of prior unfair labor practices). 9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Or- der 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. 10 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.” IGT D/B/A INTERNATIONAL GAME TECHNOLOGY 11 or benefits [set forth in the agreement] if you engage in deliberate conduct or make any public statements detrimental to the busi- ness or reputation of IGT.” WE WILL NOT in any like or related manner interfere with your rights under Federal labor law. WE WILL, within 14 days of the Board’s order, rescind the un- lawfully overbroad nondisparagement provision in the Separa- tion Agreement and General Release that we maintained and sometimes offered to employees from at least June 30, 2015 until January 25, 2016, and notify in writing all former employees who signed the separation agreement that we have done so and that the unlawfully overbroad nondisparagement provision will not be given effect. IGT D/B/A INTERNATIONAL GAME TECHNOLOGY The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-166915 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.