Commercial Solar Arizona, LLC

373 NLRB No. 69 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. Commercial Solar Arizona, LLC and Jared Shortal. Cases 28–CA–288120 and 28–CA–291982 June 14, 2024 DECISION, ORDER, AND ORDER REMANDING IN PART BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX On June 20, 2023, Administrative Law Judge Ariel L. Sotolongo issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions1 and briefs and has decided to af- firm the judge’s rulings, findings,2 and conclusions only to the extent consistent with this Decision, Order, and Or- der Remanding in Part.3 This case presents several allegations that the Respond- ent violated Section 8(a)(1) of the Act. The judge dis- missed an allegation that the Respondent violated Section 8(a)(1) by discharging employee Jared Shortal because of his protected concerted activity. We affirm the judge’s dismissal of this allegation, but we rely on a different ra- tionale. The judge also found that multiple policies in the Respondent’s handbook were lawful under Boeing Co.4 As explained below, we find that nearly all the allegations involving these handbook policies should be severed and remanded to the judge to apply our recent decision in Stericycle, Inc.,5 which overruled Boeing Co.6 1 There are no exceptions to the judge’s findings that the Respondent violated Sec. 8(a)(1) of the Act by threatening employees with discharge if they discussed their wages, and by promulgating and maintaining a rule prohibiting employees from discussing their wages while at work and the “Constructive Discharge” handbook policy. In addition, there are no exceptions to the judge’s dismissal of an allegation that the Re- spondent implemented an overbroad rule prohibiting employees from de- viating from the chain of command when taking complaints to the Re- spondent. 2 The General Counsel has excepted to some of the judge's credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stand- ard 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 these findings. 3 We shall modify the judge's recommended Order to conform to the Board's standard remedial language and in accordance with our decision in Paragon Systems, Inc., 371 NLRB No. 104 (2022). We shall substi- tute a new notice to conform to the Order as modified. Alleged Unlawful Discharge of Shortal The Respondent is engaged in the business of installing solar panels. Employee Jared Shortal was hired as a solar panel installer on May 27, 2021.7 On August 25, while working with other installers and temporary workers, in- cluding fellow installer Ramsen Alquasrani, the employ- ees discussed their training and noted that some employ- ees were paid $18 an hour and others $20. Sometime be- fore lunch, the Respondent’s Construction Manager, Kurt Horacek, asked to speak with Alquasrani. Horacek an- grily told Alquasrani to stop discussing his wages with other employees and added that Alquasrani would make “zero fucking dollars” if he continued doing so. Shortly thereafter, Horacek told Alquasrani and the rest of the work crew, including Shortal, not to talk about wages, and warned that if they did so they would be discharged.8 On October 15, Shortal called the Respondent’s Direc- tor of Operations, May Shepherd Ellerbe, and asked if there were any training courses Shortal could complete in order to obtain a raise. Ellerbe informed Shortal that there were no additional training courses for Shortal. Shortal responded that he wanted a raise to $20 an hour because he needed more money. Ellerbe replied that she would speak with the Respondent’s president, Curtis Hilliker, about his request. On October 18, Shortal sent Ellerbe an email reiterating his request for a raise, stating that he “wanted to make sure we are on the same page. I need $20/hr.” Later that day, Shortal and Horacek discussed Shortal’s request. The credited testimony9 establishes that Horacek informed Shortal he would not receive his requested raise. Shortal expressed his disappointment and frustration, stating that gas was expensive. Horacek stated that he was “done” with the conversation and walked away. The credited tes- timony does not show that Horacek said anything about We have also amended the judge’s conclusions of law to correct an inadvertent error. Despite finding that the Respondent’s “Constructive Discharge” policy was unlawful and the “Whistleblower Protection” pol- icy was lawful, the judge inadvertently referred to the “Whistleblower Protection” policy instead of the “Constructive Discharge” policy in his Conclusion of Law 3. Our substitution fixes the error. 4 365 NLRB No. 154 (2017). 5 372 NLRB No. 113 (2023). 6 However, and also as explained below, we find that a remand is not warranted regarding the allegation that the Respondent’s “Phone, Com- puter, E-mail and Internet Usage” policy is unlawful and instead affirm the judge’s finding that the policy is lawful under extant law. 7 All dates are in 2021 unless otherwise noted. 8 As noted above, there are no exceptions to the judge’s finding that the Respondent’s threat and rule prohibiting discussion of wages violated Sec. 8(a)(1). 9 The parties disputed the specifics of this discussion. The judge credited the testimony of the Respondent’s witnesses and fully discred- ited Shortal’s account. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Shortal being terminated or laid off or that Shortal said anything about quitting his employment. Early that evening, Ellerbe sent Shortal an email stating that she was notified that Shortal had resigned. The email explained how Shortal would receive his final pay and wished him good luck in his future endeavors. Shortal re- ceived this email either that day or shortly thereafter, but he did not respond to it. Shortal did not return to work after October 18. However, on about October 19, Shortal applied for un- employment insurance, claiming he had been laid off. Ellerbe responded to the notice from the state unemploy- ment insurance program and stated that Shortal was not laid off but had quit his employment after the Respondent denied his request for a raise. Shortal’s application was denied, and he did not appeal. The judge dismissed the allegation that the Respondent unlawfully discharged Shortal. The judge found that the General Counsel failed to sustain her initial burden under Wright Line10 because there was no evidence that Shortal engaged in protected concerted activity and there was no evidence of animus toward Shortal’s protected activity. Having resolved the allegation on this basis, the judge stated that it was unnecessary to address whether Shortal was discharged, laid off, or had quit. Although we affirm the judge’s dismissal of this com- plaint allegation, we do so on a different basis. Specifi- cally, we find that the credited evidence does not establish that Shortal was discharged. Indeed, the credited testi- mony does not mention any reference to a discharge dur- ing the October 18 conversation. Additionally, Ellerbe’s email to Shortal did not mention a discharge. Instead, it referenced a resignation, and Shortal neither responded to the email nor returned to work to demonstrate that he had not resigned. Further, after his application for unemploy- ment insurance was denied, based on the Respondent’s as- sertion that Shortal had quit his employment, Shortal did not appeal that determination. Plainly, these facts do not establish that the Respondent discharged Shortal. In the 10 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). 11 Having found that the credited testimony does not establish that the Respondent discharged Shortal, we find it unnecessary to pass on the judge’s finding that Shortal’s raise request did not constitute protected concerted activity and that the Respondent’s conduct did not demonstrate animus toward Shortal’s protected activity. 12 In her exceptions, the General Counsel requested that the Board overrule Quicken Loans, Inc., 367 NLRB No. 112 (2019), and Alstate Maintenance, LLC, 367 NLRB No. 68 (2019). We note that the Board recently overruled Alstate in Miller Plastic Products, Inc., 372 NLRB No. 134 (2023). We decline the General Counsel’s request to revisit Quicken at this time. absence of evidence establishing that a discharge oc- curred, the General Counsel’s initial burden under Wright Line is not sustained.11 For this reason, we affirm the judge’s dismissal of the complaint allegation that the Re- spondent violated Section 8(a)(1) by discharging Shortal for his protected activity.12 Alleged Unlawful Work Rules As mentioned above, the complaint alleges that the Re- spondent maintained several work rules in its employee handbook that violate Section 8(a)(1) because they inter- fere with, restrain, and coerce employees in the exercise of the rights guaranteed them by Section 7. The chal- lenged rules are entitled “Confidentiality,” “Personal Rec- ords and Employee References,” “Standards of Conduct,” “Complaint Procedure,” and “Whistleblower Protection.” Applying the framework set forth in Boeing Co., supra, the judge found that all of these challenged policies were lawful. The General Counsel excepts.13 Recently, in Stericycle, supra, the Board overruled Boe- ing Co. and adopted a modified version of the framework set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). In light of our decision in Stericycle, which implicates the complaint allegations related to the rules referenced above, we shall sever those allegations and re- mand them for further consideration by an administrative law judge consistent with the framework adopted in Steri- cycle.14 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 3: “3. Respondent additionally violated Section 8(a)(1) of the Act by promulgating and maintaining the overly broad Policy 7.7 “Constructive Discharge” rule in its Employee Handbook.” ORDER The National Labor Relations Board orders that the Re- spondent, Commercial Solar Arizona, LLC, Scottsdale, Arizona, its officers, agents, successors, and assigns, shall 13 The General Counsel requests that the Board overrule Boeing Co. As discussed above, the Board recently overruled Boeing Co. in Stericy- cle, supra, 372 NLRB No. 113. 14 As noted above, we find that a remand is not warranted for the com- plaint allegation that the Respondent’s “Phone, Computer, E-mail and Internet Usage” handbook policy (the “Internet Usage” policy) violates Sec. 8(a)(1). The judge applied Caesars Entertainment d/b/a Rio All- Suites Hotel & Casino, 368 NLRB No. 143 (2019), and found that the Internet Usage policy was lawful. The General Counsel concedes that the Internet Usage policy is lawful under extant precedent but, on excep- tion, requests that the Board overrule Rio All-Suites. Although we would be open to reconsidering Rio All-Suites in a future appropriate case, we decline the General Counsel’s request to revisit that precedent at this time and therefore conclude that a remand is unnecessary. Accordingly, we affirm the judge’s dismissal of this allegation. COMMERCIAL SOLAR ARIZONA, LLC 3 1. Cease and desist from (a) Threatening employees with discharge if they en- gage in protected concerted activities. (b) Promulgating and maintaining rules prohibiting em- ployees from discussing their wages and prohibiting em- ployees from claiming constructive discharge unless they provide written notice and observe a waiting period. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act. (a) To the extent that it has not already done so, rescind the rule prohibiting employees from discussing their wages and the “Constructive Discharge” handbook rule. (b) To the extent it has not already done so, furnish em- ployees with inserts for the current employee handbook that (1) advise that the unlawful “Constructive Discharge” rule has been rescinded, or (2) provide lawfully worded provisions on adhesive backing that will cover the unlaw- ful provisions; or publish and distribute to employees re- vised employee handbooks that (1) do not contain the un- lawful “Constructive Discharge” rule, or (2) provide law- fully worded provisions. (c) Post at its Scottsdale, Arizona facility copies of the attached notice marked “Appendix.”15 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 28, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to en- sure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facilities involved in these proceed- ings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and 15 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tice must be posted within 14 days after the facility reopens and a sub- stantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic former employees employed by the Respondent at any time since August 25, 2021. (e) 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 complaint allegations related to the “Confidentiality,” “Personal Records and Employee References,” “Standards of Conduct,” “Com- plaint Procedure,” and “Whistleblower Protection” rules are remanded for the purpose of reopening the record, if necessary, and the preparation of a supplemental decision addressing the complaint allegations affected by Stericy- cle and setting forth credibility resolutions, findings of fact, conclusions of law, and a recommended Order. Be- cause the Board has been advised that Administrative Law Judge Ariel L. Sotolongo has retired, these allegations are remanded to Chief Administrative Law Judge Robert A. Giannasi, who may designate another administrative law judge in accordance with Section 102.36 of the Board’s Rules and Regulations. Copies of the supplemental deci- sion shall be served on all parties, after which the provi- sions of Section 102.46 of the Board’s Rules and Regula- tions shall be applicable. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found or remanded. Dated, Washington, D.C. June 14, 2024 ______________________________________ Lauren McFerran, Chairman ________________________________________ David M. Prouty, Member ________________________________________ Gwynne A. Wilcox, Member means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 (SEAL) NATIONAL LABOR RELATIONS BOARD 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 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 with discharge if you engage in protected concerted activities. WE WILL NOT promulgate and maintain rules prohibit- ing you from discussing your wages and prohibiting you from claiming constructive discharge unless you provide written notice and observe a waiting period. 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, to the extent that we have not already done so, rescind the unlawful rule prohibiting you from discuss- ing your wages and the unlawful “Constructive Dis- charge” handbook rule. WE WILL, to the extent we have not already done so, furnish you with inserts for the current employee hand- book that (1) advise that the unlawful “Constructive Dis- charge” rule has been rescinded, or (2) provide lawfully worded provisions on adhesive backing that will cover the unlawful provisions; or publish and distribute to you re- vised employee handbooks that (1) do not contain the un- lawful “Constructive Discharge” rule, or (2) provide law- fully worded provisions. COMMERCIAL SOLAR ARIZONA, LLC The Board’s decision can be found at http://www.nlrb.gov/case/28-CA-288120 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor 1 Hilliker, who is normally referred to as “Curt” at the company, is often referred to by his middle name “Wayne” throughout the record, to avoid confusion with Kurt Horacek, who is referred to as “Kurt.” Relations Board, 1015 Half Street, S.E., Washington D.C. 20570 or by calling (202) 273-1940. Lisa J. Dunn, Esq., for the General Counsel. Jeffrey W. Toppel, Esq. (Farhang & Medcoff, (PLLC)), for the Respondent. DECISION STATEMENT OF THE CASE ARIEL L. SOTOLONGO, Administrative Law Judge. At issue in this case is whether Commercial Solar Arizona LLC (Respondent or the Em- ployer) unlawfully discharged Charging Party Jared Shortal (Shortal) be- cause he engaged in protected concerted activity, and whether Respond- ent had previously threatened Shortal and other employees for engaging in such activities. Also at issue is whether Respondent maintained overly-broad and discriminatory—and thus unlawful—policies in its Employee Handbook. I. PROCEDURAL BACKGROUND Pursuant to charges filed by Shortal in Case 28–CA–288120 on De- cember 22, 2021, and in Case 28–CA–291982 on March 7, 2022, the Regional Director of Region 28 of the Board filed a consolidated com- plaint in this matter on May 10, 2022. Respondent thereafter filed a timely answer to said complaint. I presided over a hearing on this matter in Phoenix, Arizona, on February 28 through March 1, 2023. II. JURISDICTION The complaint alleges, and Respondent admits, that at all material times Respondent has been a limited liability company with a place of business in Scottsdale, Arizona, and has been engaged in the commer- cial/industrial installation of solar panels. The complaint further alleges, and Respondent admits, that in the course of its business operations dur- ing the 12-month period ending on December 21, 2021, it purchased and received at its Scottsdale, Arizona facility goods valued in excess of $50,000 directly from points outside the State of Arizona. Accordingly, I find that at all material times Respondent has been an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. III. FINDINGS OF FACTS A. Background Facts As briefly described above, Respondent is engaged in the business of commercial or industrial solar panel installations, and is a fairly young company, having begun its operations in early 2021. Curtis (Wayne) Hilliker (Hilliker) is the company’s founder and is its president;1 Kurt Horacek was its construction manager during the events material to this matter;2 May Shepherd Ellerbe (Ellerbe) was its director of operations; and Shannon Barrett was its CFO and HR Director (since her 2 Horacek left Respondent’s employment sometime in October 2022. COMMERCIAL SOLAR ARIZONA, LLC 5 employment started in January 2022). Hilliker, Horacek and Ellerbe are admitted Section 2(11) supervisors and Section 2(13) agents of Respond- ent, and Barrett is an admitted Section 2(13) agent. Additionally, Re- spondent employed a foreman at the jobsite at issue (as described below), Rodger Tovar (Tovar), who the parties stipulated was a Section 2(11) supervisor. Respondent began hiring its first rank-and-file employees, solar panel installers, in the Spring of 2021, to work at a commercial site in the North Phoenix area, which will be referred to as the project or jobsite—the site of the events that are at issue in this case.3 Shortal as hired on May 27, 2021 (all dates hereafter shall be in 2021, unless otherwise indicated) around the same time as other installers to work at the jobsite. As de- scribed further below, his employment ended in October, although there is a dispute as to whether he was discharged, as alleged by the General Counsel, or whether he quit, as alleged by Respondent. B. The Alleged Threats by Horacek in August (2021) Shortal testified that on or about August 25, he was working on the rooftop at the jobsite along with several other installers, including Ram- sen Alquasrani, LaDonn McRay, and Sam (last name unknown), as well as two temporary workers, Isaiah and Francisco (last names unknown). According to Shortal, the installers were discussing their wages and their training amongst themselves. They discussed the fact that some were making $20 per hour at the time, while others, including Shortal, were making $18. Sometime before lunch, Shortal testified, Alquasrani re- ceived a call (on his “walkie-talkie”) from Horacek, the construction manager, who asked him to come down from the roof to speak with him. Alquasrani did so, and when he came back to the roof a short while later, he told Shortal and the others that Horacek had warned him not to discuss his wages with others or he would be terminated. According to Shortal, at the end of their shift, when he and the other installers came down from the roof, they were met on the parking lot by Horacek, who told them not to discuss their wages. Alquasrani, who is still employed by Respondent, corroborated Shortal’s testimony. Thus, he testified that on that particular day, a newly-hired installer named Sam (Rodriguez), who worked only that one day, was complaining about his wages and other things with his fellow workers, and then proceeded to quit. Shortly after Sam left, Horacek called Alquasrani and asked him to come down from the roof, and he complied. Alquasrani testified that when he reached the ground, Horacek asked him if he was the one who was talking about wages. He answered “no,” adding that Sam was the one who had been talking about his wages. At this point, Alquasrani testified, Horacek became visibly upset, and started yelling at him that “talking about wages hurts the com- pany,” and “if I hear you talking about your fucking wages again, you will be making zero fucking dollars.” Alquasrani again told Horacek that Sam, not he, was the one who had spoken about wages. When he re- turned to the roof, Alquasrani told the other installers what Horacek had said to him. At the end of the workday, after the crew had come back to 3 The precise location or address of the project was never identified in order to protect the confidentiality of Respondent’s clients, but was described as being located in the north Phoenix area near the I-7 and Deer Valley. There is no dispute that this is the only jobsite or project at issue in this case, although some of the conversations at issue in this case also took place at Respondent’s main office in Scottsdale. 4 Alquasrani initially testified that this event had occurred in October, but corrected himself shortly thereafter, explaining that he recalled that this occurred during the summer, because it was still hot at the time. (Tr. 255–256.) In light of the fact that these events occurred almost 2 years prior to his testimony, I do not find that the initially testified-to date of October detracts from the witness’ credibility, as other factors and testi- mony support that credibility. 5 General Counsel’s Exhibits will be referred to as “GC Exh..” fol- lowed by the exhibit number; Respondent’s exhibits will be referred to the ground, Horacek, who according to Alquasrani was by then much calmer, said to all of them: “Guys, you can’t be talking about your wages. It isn’t right for the company. We lost a guy today because of what you guys were doing,” He added, “If you talk about your wages, you are done.”4 Horacek did not testify. He left Respondent’s employment in October 2022, and was out of the country at the time of the hearing. The parties agreed to admit Horacek’s Board affidavit, which he provided on Febru- ary 3, 2022, in lieu of his testimony (Jt. Exh. 1).5 In his affidavit, Horacek states that in August (2021), a new employee quit after only a day or two (presumably, Sam) because he was upset that another employee got to drive a company truck, a privilege he did not get—apparently not know- ing that such employee was a foreman. Horacek reported this incident to Hilliker, who informed Horacek that employees should not be talking about what they make while at work—and instructed Horacek to so in- form the employees. In his affidavit, Horacek admits that he told the employees that they “can’t be talking about our wages while working because it does not benefit anybody.” 6 I credit the testimony of Shortal and Alquasrani, noting that they are consistent with each other’s version of events. I particularly credit Alquasrani, in light of the fact that he is a current employee, which en- hances his credibility, and because his testimony is rich in details. To the extent that Horacek’s version of events, as described in his affidavit, differs from Shortal’s and Alquasrani’s, I credit the latter two witnesses, for the reasons discussed.7 It is noted, however, that Horacek admits telling employees not to discuss wages, which supports the “bottom line” of Shortal’s and Alquasrani’s version of the events. In light of the above, I conclude that the events occurred as Shortal and Alquasrani described them. C. The End of Shortal’s Employment in October (2021)8 As discussed above, Shortal started working for Respondent as an in- staller on May 27, and initially was paid $16 an hour. It is undisputed that soon thereafter his wages were raised to $17 and then to $18 an hour, after he completed some training courses. Shortal testified that on Friday, October 15, he called Ellerbe on the phone, and asked her whether there were any additional training courses to complete, in order to receive an additional raise. Ellerbe told Shortal that he had completed all the training courses required at the time. Shortal then told her that he wanted a raise to $20 an hour (from his cur- rent $18). According to Shortal, Ellerbe replied that she would talk to Hilliker about it. Prompted by a question from the General Counsel as to whether there had been any mention of Horacek during this conversa- tion, Shortal stated that mentioned to Ellerbe that Horacek “did threaten us with termination if we were to talk about wages with our coworkers.” Further prompted as to whether he had said anything to Ellerbe about when Horacek had so threatened, Shortal testified that he told Ellerbe that this had occurred “something to the effect of a couple, few weeks ago.”9 According to Shortal, Ellerbe did not respond to comments as “R. Exh.” followed by the exhibit number; Joint Exhibits, such as this particular exhibit, will be referred to as “Jt. Exh.,” followed by the ex- hibit number. 6 Hilliker testified that he never told Horacek to instruct the employ- ees not to discuss wages (Tr. 140). Even if true, however, what is ulti- mately relevant is what Horacek, an admitted supervisor and agent of Respondent, said to the employees, even if that directive had not come from Hilliker. 7 In that regard, I note that an affidavit’s demeanor is opaque and ret- icent, and they are notoriously difficult to cross-examine. 8 As discussed earlier, there is a dispute as to whether Shortal quit, as alleged by Respondent, or was discharged, as alleged by the General Counsel, as discussed below. 9 Tr. 217–218. In fact, as described earlier, this conversation with Horacek had occurred 2 months earlier, in August. There is absolutely DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 regarding Horacek. In her testimony, Ellerbe confirmed that she had a phone conversation with Shortal on October 15, during which he asked if there were any more training courses he could complete in order to get an additional raise. Ellerbe informed Shortal there were no additional training courses left to complete, and Shortal told her he wanted a raise to $20 an hour, because he needed more money. Ellerbe told Shortal that she would talk to Hilliker about his request. Ellerbe firmly denied that Shortal said an- ything about Horacek making a threat to fire employees for discussing their wages.10 Ellerbe discussed Shortal’s request with Hilliker later that day, who said he wasn’t sure if he would grant it. In is undisputed that on Monday, October 18, Shortal sent Ellerbe an email as a follow-up to their phone conversation. The email, sent at 7:20 a.m., read as follows: “Good Morning May, Before you talk to Wayne for me today, I just wanted to make sure we are on the same page. I need $20/hr. If we can make this a phone call that would be preferred, as I am returning from break soon. Thank you, Jared Shortal.” (GC Exh. 4). Shortal testified that Ellerbe never responded to his email. Ellerbe testified that she spoke again with Hilliker after receiving Shortal’s email on October 18, and at his direction forwarded Shortal’s email to Horacek, informing him that Hilliker would call him to discuss Shortal’s request (GC Exh. 5). Ellerbe testified that she did not have a discussion with Horacek, and didn’t know whether Hilliker did. Hilliker, on his part, testified that he considered Shortal’s request for a wage increase “out of the ordinary,” because he had received two wage increases in short order previously. He called Horacek, who was Shortal’s supervisor, to inform him that he had decided not to grant Shortal’s request for an increase.11 Shortal testified that later that same day, October 18, at the end of his work shift, he had a conversation with Horacek, in the presence of the foreman, Rodger Tovar. According to Shortal, Horacek said, “some- thing to the effect” that “you are done,” and “something to the effect” that “you need to think of what you are doing to me and my family before you do things.” Shortal testified that he then asked Horacek if he was terminated, and that Horacek responded, “what does it matter, you don’t want to work here,” and that “you are done.”12 Horacek then walked away, according to Shortal, who also testified that Tovar did not say a word, just shrugged his shoulders. Shortal told Tovar that “it was good working with you” before leaving the premises. On his part, Tovar testi- fied that he was present during the conversation between Horacek and Shortal on this day, and that before the conversation, Horacek had no evidence, or allegations, that Horacek made any such threats 2 weeks before Shortal’s conversation with Ellerbe, but this testimony casts doubts about Shortal’s credibility in this regard, as discussed below. 10 Tr. 89–90. Thus, Shortal and Ellerbe’s testimony about this con- versation coincide except on the issue of whether or not Horacek came up on this conversation. I note that Shortal did not even mention Horacek when he initially described the conversation with Ellerbe, and had to be prodded by the General Counsel with a follow-up leading question about any mention of Horacek. This lapse is very odd in light of the importance of this issue to the General Counsel’s theory of a violation, as discussed below. Indeed, I find that the conduct of Horacek 2 months earlier in August bears little connection to what was occurring at the moment, which was Shortal asking for a raise—for himself. Thus, he was not discussing other employees’ wages, let alone asking for a raise for others; he was asking his superiors for a raise—not discussing his wages with coworkers. There was simply no reason to bring up Horacek’s comments at this time, 2 months after the threat had occurred. Moreover, in the follow-up email Shortal sent Ellerbe on October 18 regarding their Oc- tober 15 conversation, as described below, there is no mention whatso- ever of Horacek’s conduct in August, nor is there a mention of such in informed him that Shortal had asked for a raise. According to Tovar, Horacek started the conversation by informing Shortal that he was not going to get the raise he had requested, because he had completed all the training and had receive raises at that time. Shortal then said that gas was expensive, and that the jobsite was far from home. Horacek replied that he could get another part-time job, and reiterated that he was not going to get the raise. Shortal kept repeating how he needed more money, as if he was not getting the message, according to Tovar. At this point, Tovar testified, Horacek said “I am done with this conversation.” Tovar added that he had no recollection of Horacek ever mentioning his family during this conversation, nor heard Horacek threaten Shortal in any way, nor terminate him. Tovar testified that he told Shortal that in his opinion, his work ethic did not justify a wage increase. He added that he expected Shortal to show up for work the next day, but did not. As described earlier, Horacek did not testify, because he was out of the country at the time of the hearing. In his affidavit, introduced as a joint exhibit for the parties (Jt. Exh.1), Horacek states that at the start of their conversation, Shortal came to him and said that he needed $20 per hour, and that he had sent Ellerbe an email earlier about that. Horacek in- formed Shortal that he would not get the wage raise he had requested, because in his opinion he did not have sufficient experience on the job. Shortal, according to Horacek’s affidavit, said that he needed to be paid $20 because he was the only one left and the job couldn’t get done with- out him. Horacek told Shortal that if he wanted to make $20 per hour, there were other jobs where he might want to try to earn that. According to Horacek, Shortal then said “oh, it’s going to be like that,” and walked away. Horacek called the Hilliker to inform him of what had occurred, in case Shortal went to the office or called about the incident. Reviewing the three accounts of the conversation described above, I note that they are not consistent with one another. Tovar’s account of events, however, is more consistent with Horacek’s, particularly regard- ing how the conversation began, and how it ended. In both of their ver- sions, the conversation began with Horacek informing Shortal that he would not be receiving the raise that he had requested, which makes sense in light of the circumstances—and which Shortal admitted during cross-examination that he had.13 On the other hand, Shortal’s version begins with Horacek informing him that he “is done” and suggesting that by his actions Shortal had somehow put Horacek and his family in jeop- ardy. This narrative, however, is based on Shortal’s testimony that ear- lier, on October 15, he had told Ellerbe that Horacek had threatened workers 2 months earlier for discussing their wages. I did not find such testimony by Shortal to be credible, both because it doesn’t make internal sense under the circumstances, and because I credited Ellerbe’s testi- mony instead, as described above. Likewise, I believe the end of the the email Ellerbe sent Hilliker and Horacek forwarding Shortal’s Octo- ber 18 email to them (GExh. 4; 5). In light of this, I do not find Shortal’s testimony credible in this regard, and credit Ellerbe’s testimony that Shortal said nothing about Horacek during their October 15 conversa- tion. 11 Hilliker testified that he had never been told, by either Ellerbe or anyone, that Shortal had claimed Horacek had threatened employees for discussing their wages. 12 Tr. 221–223. During cross examination, however, Shortal admitted that he was “disappointed” when Horacek informed him that he was not going to get the raise he requested (Tr. 285), which implies that there was more to the conversation than Shortal described on direct examination. 13 Indeed, Shortal admitted during cross examination that he was dis- appointed when Horacek informed him that he would not be receiving the raise (Tr. 283). He also admitted, as Horacek asserted in his affidavit, that he had voiced frustration in the past and not having enough money for gas given the distance between his home and jobsite (about 45 minutes), and admitted that Horacek had given him money for gas in the past. COMMERCIAL SOLAR ARIZONA, LLC 7 conversation described in Tovar’s and Horacek’s versions are more con- sistent with each other in that it is Shortal who expressed disappointment and frustration at being denied the raise, and who seemed unable to ac- cept “no” for an answer.14 Accordingly, I do not credit Shortal’s version of how this conversation transpired, and conclude that Tovar’s and Horacek’s version of events is closer to how things occurred. In short, I find that Horacek never informed Shortal that he was terminated or laid off, in those words, as Shortal admitted, only that he wasn’t going to get a raise and should look for alternatives if he wanted more income. I also find, contrary to Shortal’s testimony, that Horacek did not say anything about his family being somehow affected by Shortal’s conduct. That same afternoon, on October 18, at 5:15 p.m., Ellerbe testified, she sent an email to Shortal that read as follows: “Hi Jared, After your meeting with Kurt and Rodger today I was notified that you have resigned your position with CSA. Your final check which will include todays hours (8 hours) will be direct deposited on Thursday the 21st to the account we have on file. WE wish you good luck with your future endeavors. Sincerely, HR.” (GC Exh. 6.) Ellerbe testified that Shortal never responded to this email. Shortal admitted not responding to this email, he received and read that same day or shortly thereafter.15 On or about October 19, Shortal filed an unem- ployment claim with the Arizona Department of Economic Security (ADES) (Unemployment Insurance Administration), alleging that Re- spondent had laid him off. About 3 weeks later, ADES sent Shortal a questionnaire for him to provide more information regarding the details of his alleged lay-off. In his answers to the questionnaire, Shortal in- formed ADES, inter alia, that he had been laid off; that Horacek (his su- pervisor) had told him he “was done;” that Horacek told him he was “laid off;” that he was told “he was no longer employed” by the employer, and told “not to show up to work the following day.” (GC Exh. 7; 8.) During cross-examination, however, Shortal admitted that Horacek had never said he was “laid off,” and there is no evidence he was told not to show up to work the next day, although Shortal re-iterated that he was told he “was done,” which he interpreted as being terminated. Respondent, in its own written response to an ADES inquiry, stated that Shortal had quit and not shown up for work after being informed he would not receive a raise. (GC Exh. 9; 10.) Shortal testified that ADES eventually denied his application for unemployment, which he did not appeal. D. The Policies in the Employee Handbook The complaint alleges the existence of policies or rules contained in Respondent’s Employee Handbook since October 18, 2021, which the 14 Thus, even though in Tovar’s version Horacek walked away at the end of the conversation, it wasn’t because he had told Shortal that he was “done” or terminated, but rather because it was Horacek who was “done” with the conversation with Shortal, who apparently kept pleading for a raise he had already been told he would not be receiving. This is con- sistent with Shortal’s admission that he was dissatisfied with his wages, which makes it more likely that he argued with Horacek about getting a raise (Tr. 264). 15 Shortal testified that he did not reply because “he didn’t need to,” since it was “very clear that I had been terminated or laid off.” (Tr. 225– 226. I do not find this explanation persuasive, first because it wasn’t “clear” that he had been terminated, even crediting his version of events (something I did not do); and second, because it would be reasonable to expect a person in these circumstances to deny such allegedly false ac- cusation, particularly given the fact that the assertion was being made by Ellerbe, who was Horacek’s superior and who had not been present dur- ing the event. General Counsel claims are overly broad and discriminatory and thus unlawful. There is no dispute that the policies or rules in question are contained in Respondent’s Employee Handbook(s), which were admitted into evidence as Joint Exhibits (Jt. Exhs. 4; 5). Rather, the dispute cen- ters on the issue of when such policies or rules were in place or effect, and whether they are unlawful. Shannon Barrett, Respondent’s CFO and HR Director testified that she started her employment on January 3, 2022, and she was tasked to create and prepare Respondent’s Employee Handbooks.16 According to Barrett, the first Employee Handbook went into effect in January 2022 (Jt. Exh.), and the second (revised) Employee Handbook went not in ef- fect in April 2022 (Jt. Exh.5). Both Ellerbe and Hilliker corroborated Barrett’s testimony in that regard, testifying that no employee handbook existed prior to January 2022. On the other hand, Shortal testified that when he was hired in May 2021, he was given a handbook that “looked like” the January 2022 Employee Handbook (Jt. Exh.4), a copy of which he had in his possession at some point, but which he misplaced—and was thus unable to produce. No such handbook was produced or is contained in the record, however, and Respondent instead introduced into the rec- ord 5 policies or rules that Shortal was made to acknowledge and sign at the time of his hiring (R. Exhs. 1–5).17 In these circumstances, I conclude that there is insufficient evidence that any employee handbook was in existence or in effect prior January 2022. Accordingly, there is no per- suasive or credible evidence supporting the allegation of the complaint that “Since about October 18, 2021. . .” the rules in question were in ef- fect.18 As described above, however, there is no dispute that the rules in question were in place as of January 2022, when the first Employee Handbook went into effect. The rules at issue are as follows: 2.4 Confidentiality19 In the course of employment with CSA, employees may have access to “Confidential Information” regarding CSA, which may include its business strategy, future, financial information, contracts, suppliers, customers, personnel information, or other information that CSA considers proprietary and confidential… 2.7 Personnel Records and Employee References CSA maintains a personnel file and payroll records for each employee as required by law. Personnel files and payroll rec- ords are the property of CSA and may not be removed from Company premises without written authorization. Because 16 Although her employment with Respondent did not formally start until January 3, 2022, Barrett testified that she started to work on the first Employee Handbook in December 2021 (Tr. 33; Jt. Exh. 4). 17 It is reasonable to infer that the General Counsel, pursuant to its subpoena duces tecum, requested production of any such pre-2022 Em- ployee Handbook, and that none was produced because it did not exist. 18 It isn’t clear why the General Counsel chose the October 18, 2021, date alleged in the complaint, other than the fact that this is the date that Shortal’s employment ended, which bears no connection to the existence or the implementation of the rules. 19 The enumeration displayed in the Employee Handbook sections de- scribed below correspond to the January 2022 version of the rules (Jt. Exh. 4). In the newest version, the April 2022 revision (Jt. Exh. 5), the enumeration changed in some of the sections. For example, Section 2.4 became Sec. 2.5; and Sec. 2.7 became Sec. 2.8, without any changes in the underlying language. There were some minor language revisions in the April 2022 version in one particular section, as described below. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 personnel files and payroll records are confidential, access to the records is restricted… . . . No copies of documents in your file may be made, with the exception of documents that you have previously signed… 6.11 Phone, Computer, E-mail and Internet Usage . . . Computer hardware, software, electronic mail, internet con- nections, and all other communication or data storage systems provided by the company are the property of CSA and are in- tended for CSA business use… . . . Therefore, the use of computers and e-mail in ways that are disruptive, offensive to others, or harmful to morale is prohib- ited. CSA systems and property are not to be used to solicit others for commercial ventures, religious or political causes, outside organizations, or other nonbusiness matters, except as permitted by the National Labor Relations Act… . . . • Sending or posting discriminatory, harassing, or threaten- ing messages or images…20 . . . • Sending or posting messages that defame or slander other individuals, except as permitted by the National Labor Rela- tions Act… . . . • Sending or posting chain letters, solicitations, or advertise- ments not related to business purposes or activities, except as permitted by the National Labor Relations Act. Using the internet for political causes or activities, reli- gious activities, or any sort of gambling, except as permitted by the National Labor Relations Act… . . . The internal contact sheet may not be used by, sold or given to any outside of CSA person or persons without prior written consent from all employees listed on the contact sheet. Calling or texting these numbers should be reserved strictly for work related purposes unless mutually agreed upon between em- ployees to be used for other purposes. Any harassment or inap- propriate use of cell phone communications will fall under our “Sexual and Other Unlawful Harassment” sections of this handbook… . . . • When you use social media, use good judgment. We re- quest that you be respectful of CSA, our employees, customers, partners, affiliates and others. Avoid using statements, photo- graphs, video or audio that reasonably could be viewed as ma- licious, obscene, threatening or intimidating, that disparages our employees, customers, partners andaffiliates, or could con- stituteharassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone's reputation or posts that could contribute to a hostile work envi- ronment, except as permitted by the National Labor Relations 20 In the April 2022 edition (Jt. Exh. 5) the word harassing was sub- stituted with the word “offensive.” Act… . . . • Any blog, wiki, or social networking site is not the ideal place to make a complaint regarding alleged discrimination, unlawful harassment, or safety issues. Complaints should be made, consistent with the “Complaint Procedures” section in this handbook… . . . • You must comply with all applicable laws including cop- yright and fair use laws. You may not disclose any sensitive, proprietary, confidential, or financial information about CSA. Confidential information includes trade secrets, or anything re- lated to CSA’ inventions, strategy, financials, or products that have not been made public, internal reports, procedures or other internal business-related confidential communications… 7.1 Standards of Conduct . . . • Gossiping or spreading rumors about co-workers… . . . • Insubordination or other disrespectful conduct… . . . • Audio or video recordings made on personal or company devices without prior notification or approval from CSA man- agement and all persons being recorded. The only exception is if the recordings are being used specifically for CSA marketing purposes and are covered under the separate “Photo/Video Re- lease Form.” Employees should still be notified of the record- ings taking place and for what purposes… 7.4 Complaint Procedure Employees are expected to make timely complaints, enabling prompt investigation and corrective actions if necessary. If you believe there has been a violation of any policy in this hand- book, or harassment based on the protected classes listed pre- viously, including sexual harassment, please use the following complaint procedure. . . 7.5 Whistleblower Protection . . . • Makes a good faith complaint regarding suspected com- pany or employee violations of the law; Makes a good faith complaint regarding accounting, internal accounting controls, or auditing matters that may lead to incor- rect or misrepresentations in financial accounting;.. 7.7 Constructive Discharge Employees are encouraged to communicate whenever they be- lieve working conditions may become intolerable to them and/or may cause them to resign. Under Section 23-1502, Ari- zona Revised Statutes, an employee may be required to notify an appropriate CSA representative in writing that a working condition exists that the employee believes is intolerable, that will compel the employee to resign, or that constitutes a COMMERCIAL SOLAR ARIZONA, LLC 9 constructive discharge, if the employee wants to preserve the right to bring a claim against CSA alleging that the working condition forced the employee to resign. Under the law, an employee may be required to wait for 15- calendar-days after providing written notice before the em- ployee may resign if the employee desires to preserve the right to bring a Constructive Discharge claim against CSA. An em- ployee may be entitled to paid or unpaid leave of absence of up to 15-calendar-days while waiting for CSA’ response to the employee's written communication about the employee's working condition. IV. ANALYSIS A. The Alleged Threat and Promulgation of an Unlawful Rule by Horacek in August The complaint alleges that on or about August 25, Horacek promul- gated an unlawfully broad and discriminatory rule prohibiting employees from discussing wages, and threatened employees with discharge for do- ing so.21 I find that these allegations have merit. As I found in the Facts section, on that date Horacek angrily told in- staller Alquasrani to stop discussing his wages with other employees, and threatened that he would not be making any wages if he continued to do so. Shortly thereafter, Horacek told Alquasrani and the rest of the work crew, including Shortal, not to talk about wages, and again warned that if they did so they would be “done.” Employee discussions of wages or their working conditions is hornbook-text classic example of protected concerted activity, and any attempt by an employer to restrain or threaten such activity violates Section 8(a)(1) of the Act. Triana Industries, Inc, 245 NLRB 1258 (1979); Waco, Inc., 273 NLRB 746, 747–748 (1984). Likewise, the formulation or implementation of any such rule, in this case by Horacek, is likewise unlawful. Id.22 Accordingly, I conclude that Respondent violated Section 8(a)(1) as alleged in paragraphs 4(a)(1) and (2) of the complaint. B. The Allegation that Respondent Unlawfully Implemented an Overly Broad and Discriminatory Rule on October 18 Prohib- iting Employees from Deviating from the Chain of Command when Taking Complaints to Respondent.23 This allegation stems from the events on October 15, when Shortal phoned Ellerbe to inform her that he wanted a raise from $18/hour to $20. According to the General Counsel, on October 15, in addition tell- ing Ellerbe that he wanted a raise, Shortal also informed her that 2 months prior, in August, Horacek had threatened the installers with ter- mination if they discussed wages with each other. According to the Gen- eral Counsel, on October 18, Horacek confronted Shortal on the jobsite at the end of his shift, telling him that he needs to think about what he was doing to him (Horacek) and his family—by complaining to Ellerbe about him on October 15. By doing this, the General Counsel poses, Horacek was promulgating a “discriminatory and overly broad” rule re- quiring employees with complaints to come to him first, rather than go- ing over his head to management at the front office. I find this allegation lacks merit, for a couple of reasons. First of all, I did not credit Shortal’s testimony that on October 15 he told Ellerbe that Shortal had threatened him and other employees 2 months earlier 21 Complaint pars. 4(a)(1)&(2). 22 On the other hand, the complaint alleges that Respondent promul- gated and “has since maintained” this rule, but the evidence is not clear that such rule is still being maintained or enforced. Indeed, none of the rules in the Employee Handbook extensively quoted and alleged as un- lawful by the General Counsel addresses this topic. It appears that this because they had been discussing their wages. As I discussed in the Facts section, the only reason Shortal phoned Ellerbe on October 15 was to ask for a raise for himself, and suddenly raising something that had occurred 2 months before was a non- sequitur—and not credible. I credited Ellerbe’s testimony that Shortal had not mentioned Horacek at all during their October 15 conversation, and nothing in the written communica- tions that followed this conversation shows otherwise. Accordingly, Horacek had no reason to threaten Shortal about him “going over his head,” something he never said. Moreover, I credited Tovar’s and Horacek’s version of the October 18 conversation over Shortal’s version, and again concluded that Horacek had said nothing about his family, or about Shortal going over his head and complaining to upper manage- ment. Simply put, I concluded this did not happen as the General Coun- sel has alleged, and on that basis alone this allegation of the complaint should be dismissed. Secondly, assuming, for the moment, that indeed Horacek said what the General Counsel alleged he said, its allegation that by his words he was promulgating an unlawful rule that complaints had to be brought to him first is a quite a stretch—a bridge too far. If anything, this wording suggests more of an unspecified threat, if anything, which granted, would be unlawful. But even assuming that Horacek in fact was creating this rule, how exactly is this a violation of the Act? I am not aware of any Board authority—and the General Counsel cites none—that employers are prohibited by the Act from establishing a procedure for bringing com- plaints to bear, such as for example bringing a complaint to an immediate supervisor initially. Rather, the Board has found violations of the Act in this regard in cases wherein employers rigidly require employees to lodge complaints only with certain management officials, to the exclu- sion of anybody else, including discussing these complaints with other employees. See, e.g., PAE Applied Technologies, LLC, 367 NLRB No. 105, slip op. at 2, fn. 6 (2019); Hyundai American Shipping, Inc., 357 NLRB 860, 860 (2011). I would also note that in those cases the rules were in writing, and not created in an “off the cuff” remark by a super- visor. Accordingly, and for the above reasons, I conclude this allegation of the complaint should be dismissed. C. The Termination of Shortal’s Employment The complaint alleges that Shortal was discharged by Respondent on October 18 because he engaged in protected concerted activity.24 In a nutshell, the General Counsel avers that on October 15, when Shortal phoned Ellerbe to tell her he wanted a raise from $18 to $20 per hour, he happened to also mention that Horacek had told him and the other in- stallers not to discuss their wages, and threatened them with termination if they did so again—something that had actually occurred 2 months ear- lier, and which Shortal had never brought up before. The General Coun- sel surmises that Horacek found out about Shortal’s complaint (to Ellerbe) about his (earlier) conduct, and that Horacek then discharged him at the end of his shift on October 18, saying “something to the effect” that “you are “done,” and “something to the effect” that “you need to think of what you are doing to me or my family before you do things.” Citing Wright Line, the General Counsel avers that Shortal was engaged in protected concerted activity when he told Ellerbe, during their October 15 phone conversation, about Horacek’s threat; that Horacek displayed animus toward Shortal’s protected activity in his statements to Shortal on October 18; and that therefore the evidence suggests that at least part of the motivating factor for Shortal’s termination was his October 15 protected activity. Finally, the General Counsel avers that the burden rule was created and announced by Horacek, who is no longer employed by Respondent, and is thus no longer around to implement or enforce such rule. Then, again, Respondent has not formally repudiated it, but instead takes the position that this incident did not occur as alleged. 23 Complaint par. 4(c)(1). 24 Complaint pars. 4(b); (e); (f). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 under Wright Line thus shifted to Respondent to show that Shortal would have been discharged even in the absence of protected activity, and that Respondent failed to meet such burden. As discussed in the Facts section, however, I did not credit Shortal’s testimony that he had mentioned Horacek’s threat during Shortal’s phone conversation with Ellerbe on October 15. Crediting Ellerbe’s testimony, I concluded that Shortal had said nothing to Ellerbe about Horacek dur- ing their October 15 conversation. Accordingly, Shortal did not, contrary to the General Counsel’s theory, engage in protected concerted activity on October 15. All he spoke about on that occasion, I concluded, was getting his raise—which is neither “concerted,” nor “protected” activ- ity.25 Likewise, I did not credit Shortal’s version of his conversation with Horacek (and Tovar) on October 18, concluding that Horacek’s and To- var’s versions were closer to the truth, and that therefore no statement reflecting animus of any kind was made by Horacek. In light of the above, there is no evidence that Shortal was engaged in protected concerted activity shortly before, or at the time his employment ended, nor that any animus on Respondent’s part existed toward Shortal because of any such activity. There is thus no evidence that protected activity, nor animus toward such activity, played a role in these circum- stances. Accordingly, the General Counsel has not met its burden of proof under the Wright Line analytical framework, and I recommend that this allegation of the complaint be dismissed.26 D. The Employee Handbook Policies As described in the Facts section, it is undisputed that Respondent’s Employee Handbook contains the policies or rules described above, as alleged in the complaint. Contrary to the complaint, which alleges that these policies were in place as of October18, 2021, the evidence shows that the first Employee Handbook which contains these policies (Jt. Exh. 4) did not come into existence nor was implemented prior to January 2022, and was later slightly revised in April 2022 (Jt. Exh. 5).27 In its post-hearing brief, the General Counsel attacks the validity and legality of these provisions in various ways, but its primary argument is that I should recommend that the Board overrule several of its relatively recent decisions regarding employee rules.28 Chief among these, inter alia, are the following: Boeing Co., 365 NLRB No. 154 (2017); LA Specialty Pro- duce Co., 369 NLRB No. 93 (2019); Rio All-Suites, 368 NLRB No. 143 (2019); and their progeny. I decline such request, because my duty as a judge is to follow and apply existing Board precedent, whether or not I am in agreement.29 I would note that there already are several cases pending before the Board where these precedents and others the General Counsel is seeking to overturn are under review. There is accordingly 25 Even assuming, for the sake of argument, that I had found that in- deed Shortal had mentioned to Ellerbe on October 15 that Horacek had threatened him and the others in August for discussing their wages, I am not persuaded, without more, that this conduct by Shortal can be deemed “concerted,” as alleged in the complaint. Thus, there is no evidence that Shortal ever discussed with his coworkers his intent to bring up Horacek’s conduct 2 months earlier, let alone evidence that he was doing so on their behalf or with their knowledge or consent. The General Counsel, citing Mike Yurosek & Son, 306 NLRB 1037, 1038 (1992), after remand, 310 NLRB 831, enfd. 53 F.3d 261 (9th Cir. 1995), argues that an employee’s complaint is concerted if it is a “logical outgrowth of the concerns of the group.” I would note, however, that Shortal’s com- plaint—if that is what it actually was—would have been a “logical out- growth” of the group’s concern had it occurred shortly, or at least within a reasonable timeframe after the incident, when the coercive effect of the threat was still fresh and some collective response was called for or con- templated. I am not certain that nexus still existed 2 months later, when the main if not only purpose of Shortal’s call to Ellerbe was his own “need” for a raise, not the collective needs of the group. 26 In light of these findings, I find it unnecessary to address the issue of whether Shortal was discharged, laid off, or quit, since it is moot. no further need, in my view, to keep repeating these arguments ad nau- seum before the judges. Accordingly, I will discuss the policies at issue in light of existing precedent. Under Boeing, as subsequently clarified in LA Specialty, 368 NLRB No. 93, it is the General Counsel’s initial burden “to prove that a facially neutral rule would in context be interpreted by a reasonable employee . . . to potentially interfere with the exercise of Section 7 rights.” Id., slip op. at 2.30 If the General Counsel fails to satisfy this burden, maintenance of the rule is deemed lawful without further inquiry. See id.; Boeing, 365 NLRB No. 154, slip op. at 16. Otherwise, the Board evaluates (i) “the nature and extent of the potential impact on NLRA rights,” and (ii) “le- gitimate justifications” associated with the rule. Boeing, 365 NLRB No. 154, slip op. at 14; see also LA Specialty, 368 NLRB No. 93, slip op. at 3. The rule’s maintenance violates Section 8(a)(1) “if the Board deter- mines that the justifications are outweighed by the adverse impact on rights protected by Section 7.” Boeing, 365 NLRB No. 154, slip op. at 16. Next, the Board places rules into three categories: Category 1 (rules always lawful to maintain either because (a) when reasonably inter- preted, they do not prohibit or interfere with the exercise of NLRA rights or (b) the potential adverse impact on protected rights is outweighed by the justifications associated with the rules); Category 2 (rules warranting individualized scrutiny in each case); and Category 3 (rules never lawful to maintain because they would prohibit or limit NLRA-protected con- duct and the adverse impact on NLRA rights is not outweighed by justi- fications associated with the rules). See id., slip op. at 14–15; see also LA Specialty, 368 NLRB No. 93, slip op. at 2 & fn. 2. Applying the above principles to the policies/rules at issue, I note as follows: Regarding Policy # 2.4 (2.5 in the April 2022 version) Confidentiality, the General Counsel argues that even under Boeing such rule violates Section 8(a)(1) of the Act, because its restrictions on disclosure of “per- sonnel information,” is vague and does not specify that it only relates to truly confidential information. I disagree, and note that the language of the policy specifically makes reference to “Confidential Information,” which I do not believe a “reasonable employee,” as defined by Boeing and LA Specialty, would interpret as limiting the disclosure or sharing of his/her own payroll or other personnel information pertaining to them- selves. The General Counsel additionally argues that to the extent Boe- ing suggests this language is permissible, I should recommend to the Board that it be overruled, but as I stated above, that is not my role, and thus decline to do so. Regarding Policy # 2.7 (2.8 in the April 2022 version) Personnel Rec- ords and Employee References, the General Counsel again avers that even under Boeing employees would reasonably interpret this language 27 As discussed earlier, it isn’t clear why the General Counsel chose October 18, 2021, as the effective date for these policies—other than the fact that this is the date that Shortal’s employment with Respondent came to an end, something that bears no connection to these policies. 28 Calling it a “brief” is a misnomer; “treatise” would be closer to the truth, which at 80 pages was almost 1/3 the size of the transcript. In my experience this is an unfortunate tendency as of late, and perhaps it’s time that we judges start setting limits on the length of post-hearing briefs. 29 Nonetheless, I would observe, regarding Boeing and its progeny, that in its professed quest to provide analytical clarity to the elegant sim- plicity of the “reasonable employee” standard, the Board has instead de- vised a contraption that would have made Rude Goldberg extremely proud—perfectly illustrating that famous definition of a “camel” as a “racehorse designed by a committee.” 30 In Boeing, as clarified by LA Specialty, the Board defines a “rea- sonable employee as one who is “aware of his legal rights but who also interprets work rules as they apply to the everydayness of his job,” and who “does not view every employer policy through the prism of the NLRA,” and possesses “self-reliance, common sense, and team spirit that have always characterized America’s workers.” COMMERCIAL SOLAR ARIZONA, LLC 11 as restricting their Section 7 rights to divulge such information to other employees or third parties. Again, I disagree, applying the definition of “reasonable employee” described above. In that regard, I note that em- ployees regularly receive, outside the confines of the personnel office, payroll and other such information in the form of paystubs, W-2’s, and other such similar seemingly “confidential” information. It simply doesn’t make sense that a “reasonable employee,” regardless of what definition of that term you might use, would interpret the language of the above policy as restricting them from sharing such information with oth- ers—which, presumably, would include not only the Board or a union, for instance, but even the IRS. The General Counsel also argues that I should recommend to the Board that Boeing (and the other above-cited cases) should be overturned. Again, I decline, for the reasons stated above. Regarding Policy # 6.11 Phone, Computer, E-mail and Internet Us- age, this Policy has various sections, and the General Counsel makes different arguments as to why they run afoul of the Act. The primary argument that the General Counsel makes as to the majority of the vari- ous sections of this policy is that the Board should overrule either Boe- ing, as discussed above, and/or Rio All-Suites, supra. In Rio, the Board overruled Purple Communications, Inc., 361 NLRB 1050 (2014), and in essence found that employers can lawfully restrict the use of internal (i.e., employer-owned) E-mail and other electronic communication plat- forms for non-business purposes—for example, to promote union or other protected activities. The General Counsel urges me to recommend that the Board not only overrule Rio, but to expand employee access to employer-provided internal communication platforms even beyond the standards set forth by the Board in Purple Communications. Once again I decline to do so, for the reasons stated above. I conclude that the re- strictions contained in these clauses regarding the use of internal com- munications for non-business purposes are lawful under Rio, which is the current law of the land. Moreover, the General Counsel also takes issue with some of the language used on these sections restricting the use of internal communication platforms, which employ terms like harassing or harmful to morale, which the General Counsel deems vague and over- broad, and thus unlawful. The intrinsic problem with these arguments is that they depend on a pre-Boeing/LA Specialty definition of what a “rea- sonable employee” is, and its conclusion that such employee would in- terpret these terms in a manner that inhibits protected activity. As previ- ously stated, I must apply existing Board precedent, and I conclude that a “reasonable employee,” as defined by such precedent, would not so interpret these terms.31 To be clear, I read and interpret Policy (or rule) 6.11 of the Employee Handbook, including all its subdivisions, to restrict usage of phones, computers, e-mail and internet services provided by Re- spondent, which is lawful under Rio—not the usage of such platforms by 31 I would stress that this is not a situation where the post-Boeing sur- viving prongs under Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) are applicable. Thus, there is no evidence, or allegations, that any of the rules explicitly restrict Section 7 rights, or were promulgated in response to the exercising of those rights, or have been applied to restrict such rights. 32 Thus, the very first paragraph of Section 6.11 defines the meaning and interpretation of all subsequent clauses: “Computer hardware, soft- ware, electronic mail, internet connections, and all other communica- tions or data storage systems provided by the company. . .” (emphasis supplied). Accordingly, all other paragraphs that follow under Section 6.11 are to be read and defined by that limitation. 33 Although Briad Wenco involved the use of a similar type of savings clause in the context of an arbitration agreement, I find that the same principle is applicable here—a reasonable employee, as defined in Boe- ing and LA Specialty, would conclude that the language of the savings clause would allow employees to engage in activities protected by the Act. In that regard I would note that there is an inherent contradiction and inconsistency in the posture taken by the General Counsel regarding its employees using equipment they (employees) own.32 Additionally, I would note that several of the sections in these rules contain language indicating that the restrictions are applicable “except as permitted by the National Labor Relations Act.” The Board has ruled that this type of a “savings clause” is effective in negating the unlawful impact the language of the rule might otherwise have. See Briad Wenco, 368 NLRB No. 72 (2019).33 Accordingly, I conclude that no portion of Policy # 6.11 is unlawful under existing Board precedent, and therefore recommend that these al- legations of the complaint be dismissed. With regard to Policy # 7.1 Standard of Conduct; and Policy # 7.4 Complaint Procedure;I note that the General Counsel urges me to find these policies unlawful based on its argument that the Board should over- rule Boeing. In doing so, the General Counsel essentially concedes that these rules would be lawful if examined through the prism of Boeing.34 I would agree with that assessment. For example, the General Counsel concedes that restrictions on the making (or use) of audio or video re- cordings, similar to those contained in Policy 7.1, have been found lawful under Boeing, as well as its progeny. See AT&T Mobility, LLC, 370 NLRB No. 121 (2021). Inasmuch Boeing is current Board precedent, I conclude this allegation lacks merit. With regard to Policy 7.4, the Gen- eral Counsel argues that the complaint procedure described therein would “reasonably lead” employees to believe that they were required to raise any Section 7 complaints only internally, and not with the Board. I note, however, that the language makes reference only to complaints re- garding a “violation of policy in this handbook,” which does not list Sec- tion 7 rights, “or harassment based on protected classes listed previ- ously,” and the handbook does not list the “protected class” (i.e., those engaged in protected activity) that would be covered by Section 7. I therefore conclude that a reasonable employee—and certainly one as de- fined by Boeing and LA Specialty—would not conclude that such lan- guage would limit employees to filing Section 7-related complaints or charges only internally, with Respondent. Accordingly, I conclude that these allegations lack merit. Regarding Policy # 7.5 Whistleblower Protection, the General Coun- sel argues that the use of the term “good faith” in that rule, which extends protections to employees who file complaints in good faith, suggests to employees that they would be subject to discipline if the employer be- lieves their complaints were not made in that vein, whereas Section 7 extends protections to all complaints except those that are “knowingly false or made with reckless disregard for their truth or falsity.” Valley Hospital Medical Center, 351 NLRB 1250, 1252 (2007), enfd. sun nom. Nevada SEIU, Local 1107, 358 F. App’x 783 (9th Cir. 2009). This ar- gument by the General Counsel represents the very type of sub-atomic hair-splitting that in my view resulted in the labyrinthian analysis created the definition of a “reasonable employee” when interpreting the poten- tially coercive impact of the language in a rule, on the one hand, and while interpreting the meaning of such a savings clause, on the other. In the first instance, the General Counsel envisions a sensitive, imaginative, overly cautious (if not slightly paranoid) individual interpreting the po- tential coercive effect of a rule, who turns suddenly obtuse, if not intel- lectually challenged, when interpreting the meaning of a savings clause that plainly states that such rule does not restrict any rights granted by the Act. The General Counsel cannot have it both ways. 34 Some of the rules, however, would appear to be lawful even by pre- Boeing standards, using the “reasonably construe” prong under Lutheran Heritage. For example, under the 7.1 Standards of Conduct policy, the General Counsel objects to the use of the term “gossip” and “spreading rumors.” I would note that the use of the term “gossip” has been found lawful by a pre-Boeing Board, Hyundai America Shipping Agency, Inc., supra. Curiously, in urging me to find the use of that term unlawful, the General Counsel cites the dissent in the case, which has no precedential authority. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 by the Boeing Board in response to this mission creep (see footnote 29, above). I conclude that no “reasonable employee,” whether as defined by Boeing or pre-Boeing standards, would be inhibited from filing a com- plaint because it was merely made in “good faith,” as opposed to in “reckless disregard for the truth.” This is a distinction that only a well- versed labor lawyer could make, not a typical employee operating within the day-to-day reality of the workplace. In any event, I find the General Counsel has failed to meet its initial burden to prove that this facially neutral rule would in context be interpreted by a reasonable employee to potentially interfere with the exercise of Section 7 rights. LA Specialty, supra. Policy # 7.7 Constructive Discharge, on the other hand, is a different animal. The handbook rule bears repeating here: Employees are encouraged to communicate whenever they be- lieve working conditions may become intolerable to them and/or may cause them to resign. Under Section 23-1502, Ari- zona Revised Statutes, an employee may be required to notify an appropriate CSA representative in writing that a working condition exists that the employee believes is intolerable, that will compel the employee to resign, or that constitutes a con- structive discharge, if the employee wants to preserve the right to bring a claim against CSA alleging that the working condi- tion forced the employee to resign. Under the law, an employee may be required to wait for 15- calendar-days after providing written notice before the em- ployee may resign if the employee desires to preserve the right to bring a Constructive Discharge claim against CSA. An em- ployee may be entitled to paid or unpaid leave of absence of up to 15-calendar-days while waiting for CSA’ response to the employee's written communication about the employee's working condition. The language of this provision plainly suggests that employees who believe that they have been constructively discharged, under any law, including the Act, must follow the procedure described therein. This means being required to notify the employer, in writing, of the con- dition that they consider “intolerable,” and be subject to a 15-day waiting period before the employee can resign, in order to qualify as a bona fide constructive discharge. This policy clearly impinges on employees’ Sec- tion 7 rights, which allows employees to quit when conditions are made intolerable because they chose to exercise such rights, or when they are offered a “Hobson’s Choice” between continued employment or aban- doning their Section 7 protected activities. Yellow Ambulance Service, 342 NLRB 804, 807 (2004); Kosher Plaza Supermarket, 313 NLRB 74, 87 (1993). Accordingly, I conclude that this policy falls under “Category 3” in the Boeing analysis, rules that are never lawful to maintain, because it prohibits, or limits rights protected under the Act without any justifi- cation that would outweigh such rights.35 Indeed, I would note that no justification for this policy has been offered or put into evidence by Re- spondent. Accordingly, I agree with the General Counsel that implemen- tation and maintenance of this policy violates the Act, as alleged in the complaint. In sum, I conclude that except for Policy # 7.7 Constructive Dis- charge, none of the policies of Respondent’s Employee Handbook cited above violate the Act. CONCLUSIONS OF LAW 1. Commercial Solar Arizona, LLC (Respondent) is an employer 35 I would note that to the extent that the Arizona law cited in the pol- icy is used to limit or regulate the exercise of Sec. 7 rights, such law would be preempted by the Act. engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent violated Section 8(a)(1) of the Act by threatening em- ployees with discharge if they discussed their wages, and by promulgat- ing and maintaining the overly broad rule that employees cannot discuss their wages while at work. 3. Respondent additionally violated Section 8(a)(1) of the Act by promulgating and maintaining the overly broad Policy 7.7 “Whistle- blower Protection” clause in its Employee Handbook, as described above. 4. Respondent did not otherwise violate the Act as alleged in the com- plaint. 5. The unfair labor practices committed by Respondent, as described above, affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY The appropriate remedy for the Section 8(a)(1) violations I have found is an order requiring Respondent to cease and desist from such conduct and take certain affirmative action consistent with the policies and pur- poses of the Act. Specifically, the Respondent will be required to cease and desist from threatening employees with discharge for discussing their wages, and from promulgating or maintaining a rule prohibiting employees from dis- cussing their wages while at work. Additionally, Respondent shall cease and desist from promulgating or maintaining a policy in its employee handbook that require employees to provide a written notice or be subject to a wait period prior to resigning in order to qualify as a valid construc- tive discharge. Respondent shall also cease and desist, in any other manner, from in- terfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. Respondent shall post an appropriate informational notice, as de- scribed in the attached appendix. This notice shall be posted in the Em- ployer's Scottsdale, Arizona facility, or wherever the notices to employ- ees are regularly posted for 60 days without anything covering it up or defacing its contents. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- spondent customarily communicates with its employees by such means. In the event that, during the pendency of these proceedings, the Respond- ent has gone out of business or closed the facility involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees em- ployed by the Respondent at any time since [date of first unfair labor practice] When the notice is issued to the Employer, it shall sign it or otherwise notify Region 28 of the Board what action it will take with respect to this decision. Accordingly, based on the foregoing findings of fact and conclusions of law, and on the entire record, I issue the following recommended36 ORDER Respondent, Commercial Solar Arizona, LLC, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Engaging in any of the conduct described immediately above in the remedy section of this decision; (b) In any other like or related manner interfering with, restraining, or coercing employees in their exercise of the rights guaranteed them by Section 7 of the Act. 36 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. COMMERCIAL SOLAR ARIZONA, LLC 13 2. Take the following affirmative action to effectuate the policies of the Act. (a) To the extent that it has not already done so or previously repudi- ated such rule, rescind and repudiate the rule prohibiting employees from discussing their wages or other working conditions; and rescind the Pol- icy in the Employee Handbook requiring employees to provide a written notice or be subject to a wait period prior to resigning in order to qualify as a valid constructive discharge. (b) Within 14 days after service by the Region, post its Scottsdale, Arizona facility and other locations where notices to employees are cus- tomarily posted, copies of the attached notice marked “Appendix.”37 Copies of the notice, on forms provided by the Regional Director for Re- gion 28, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent and maintained for 60 consecu- tive days in conspicuous places including all places where notices to em- ployees are customarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facilities involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees em- ployed by the Respondent at any time since August 25, 2021. (c) 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 comply. Dated, Washington D.C. June 20, 2023 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. In recognition of these rights, we hereby notify employees that: WE WILL NOT threaten our employees with discharge for discussing their wages or other working conditions while at work; WE WILL NOT promulgate or maintain a rule prohibiting employees from discussing their wages or other working conditions while at work; WE WILL NOT maintain the following rules in our employee hand- book: - a Constructive Discharge policy or rule requiring employees to pro- vide a written notice or be subject to a wait period prior to resigning in order to qualify as a valid constructive discharge WE WILL NOT in any like or related matter interfere with, restrain, or coerce you in the exercise of rights listed above. COMMERCIAL SOLAR ARIZONA,LLC The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-288120 or by using the QR code below. Alterna- tively, 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. 37 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 facilities reopen 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 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.”