Food Services of America, Inc., a subsidiary of Services Group of America, Inc.

National Labor Relations Board - Board Decisions

May 30, 2014

360 N.L.R.B. 1012 (N.L.R.B. 2014)

1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 123
Food Services of America, Inc., a Subsidiary of Ser-
vices Group of America, Inc. and Paul Louis
Carrington. Case 28–CA–063052
May 30, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND SCHIFFER
On March 27, 2012, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Charging
Party filed exceptions, and the Respondent filed an an-
swering brief. The General Counsel filed cross-
exceptions and a supporting brief, the Respondent filed
an answering brief, and the General Counsel filed a reply
brief.1
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, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,2
and conclusions only to the extent consistent with this
Decision and Order; to amend his remedy; to adopt his
recommended Order as modified and set forth in full
below; and to substitute a new notice.3

1 There were no timely filed exceptions to the judge’s findings that
the Respondent violated Sec. 8(a)(1) of the Act by (1) maintaining in its
employee handbook an overly broad restriction on discussing employee
compensation, and (2) maintaining in its confidentiality and nondisclo-
sure agreement (the confidentiality agreement) an overly broad re-
striction on disclosing payroll or employee information. In light of
those uncontested findings, we find it unnecessary to pass on the Gen-
eral Counsel’s argument that the handbook policy and the confidentiali-
ty agreement are unlawful on the additional ground that they threaten
employees with unspecified reprisals if they were to violate them.
Because we are ordering the Respondent to rescind or revise these
confidentiality restrictions, additionally finding the alleged threats
would not materially affect the remedy. We add, however, the follow-
ing observations. Any employer rule that does not expressly state how
violations will be dealt with implies, necessarily, a threat of unspecified
consequences. Such an implicit threat is inseparable from the very
concept of a rule imposed on employees by their employer, and it is
precisely this implicit threat that furnishes the basis for the principle
that mere maintenance of a rule may chill employees in exercising their
rights. If a rule is found unlawful as having a reasonable tendency to
chill employees in the exercise of their Sec. 7 rights, that finding al-
ready assumes and reflects the threat implicit in the rule. Thus, we see
no purpose in redundantly alleging or finding the rule unlawful as
threatening unspecified reprisals.
2 The General Counsel and the Charging Party have implicitly ex-
cepted to some of the judge’s credibility findings. The Board’s estab-
lished policy is not to overrule an administrative law judge’s credibility
resolutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
3 We shall substitute a new notice to conform to the Order as modi-
fied and with our decision in Durham School Services, 360 NLRB 694
(2014). We deny the General Counsel’s motion to amend the com-
The Respondent is a food service distributor that sells
food, paper products, and cleaning supplies, among other
items, to institutions throughout the western United
States. The complaint alleges that the Respondent com-
mitted a host of violations of Section 8(a)(1) of the Act,
including discharging two employees for engaging in
protected concerted activities, maintaining several overly
broad employment policies, threatening employees, in-
terrogating an employee about protected concerted ac-
tivity, and creating an impression that it was engaged in
surveillance of those activities. The judge dismissed the
bulk of the complaint’s allegations. We adopt most of
these findings for the reasons he stated.4 As explained
below, however, we find, contrary to the judge, that the

plaint to allege that the Respondent violated Sec. 8(a)(1) of the Act by
blocking messages from former employee Elba Rubio’s personal email
account to its employees’ company email accounts for the purpose of
preventing her from asking them for employment references. After a
case has been transferred to the Board, a motion to amend the com-
plaint may be granted “upon such terms as may be deemed just.” Sec.
102.17 of the Board’s Rules & Regulations. Under the circumstances,
we find that permitting the amendment would not be just. The General
Counsel seeks to add an allegation that departs significantly from the
allegations contained in the complaint and litigated by the parties.
Because the Respondent lacked sufficient notice and opportunity to
respond to the proposed allegation, we deny the General Counsel’s
motion to amend.
4 In adopting the judge’s dismissal of the allegation that the Re-
spondent violated Sec. 8(a)(1) of the Act by discharging employee Paul
Carrington, we agree with the judge that Carrington engaged in unpro-
tected conduct when he transferred hundreds of business emails from
his company email account to his and Elba Rubio’s personal email
accounts. A significant number of those emails contained confidential
business information. See Beckley Appalachian Regional Hospital, 318
NLRB 907, 908–909 (1995) (nurse’s use of confidential patient records
in disciplinary hearing found unprotected); International Business
Machines Corp., 265 NLRB 638, 638 (1982) (employee’s distribution
of employer’s confidential internal compensation data to support em-
ployment discrimination complaints found unprotected). On exception,
the General Counsel argues that, because Carrington was discharged for
violating the Respondent’s unlawful confidentiality restrictions, his
discharge was unlawful even assuming that his mass email transfer was
unprotected. See Continental Group, Inc., 357 NLRB 409, 412 (2011).
We reject that argument. Carrington’s unnecessary disclosure to Rubio
of a significant amount of confidential business information had only
the slightest connection, if any, to his legitimate Sec. 7 interest in doc-
umenting Rubio’s claims of harassment and discrimination as well as
his own satisfactory job performance. Under the particular circum-
stances of this case, Carrington’s actions were so egregious that the
chilling impact on employees’ exercise of their Sec. 7 rights due to the
Respondent’s reliance on its confidentiality restrictions in discharging
Carrington would be minimal. Member Miscimarra agrees that the
Respondent lawfully discharged employee Paul Carrington for engag-
ing in the unprotected conduct of disclosing confidential business in-
formation. He does not apply or rely on Continental Group, supra.
In adopting the judge’s dismissal of the allegation that the Respond-
ent violated Sec. 8(a)(1) of the Act by maintaining a policy prohibiting
employees from disclosing their cell phone numbers to each other, we
note that the General Counsel failed to prove that the Respondent actu-
ally maintained such a policy.
FOOD SERVICES OF AMERICA, INC. 1013
Respondent violated Section 8(a)(1) of the Act by dis-
charging Elba Rubio because of her protected concerted
discussions with employee Michelle Aparicio; by in-
forming employee Paul Carrington that he could have a
future with the company if he stopped talking to Rubio;
and by maintaining an overly broad no-solicitation poli-
cy.
1. Elba Rubio’s discharge
Rubio worked for the Respondent as a supplier e-
commerce specialist until her discharge on March 4,
2011.5 Rubio worked alongside her boyfriend, Paul Car-
rington, whom the Respondent employed as a supplier
information specialist. Rubio and Carrington were su-
pervised by Merissa Hamilton. Hamilton and Rubio
were once close friends, but their relationship began to
deteriorate in the fall of 2010. In November 2010, Ham-
ilton sent Rubio several email messages in which she
discussed her religious beliefs and implied that Rubio
would be more “promotable” if she adopted those be-
liefs. In January, Rubio complained to Hamilton’s supe-
riors about these messages. Hamilton’s supervisor di-
rected Hamilton to stop discussing religion with her su-
pervisees, but he did not issue her any written discipline.
Rubio later learned that Hamilton had been coached
about the issue. There is no evidence that Hamilton con-
tinued to attempt to proselytize Rubio or any other em-
ployee.
Meanwhile, in October 2010, the Respondent hired a
friend of Rubio’s, Michelle Aparicio, as a part-time item
administrator, based in part on Rubio’s recommendation.
The relationship between Rubio and Aparicio began to
sour in the months following Aparicio’s hire, however,
as a result of Aparicio’s performance issues. Rubio testi-
fied that Aparicio had difficulty keeping up with her
work and repeatedly asked the same questions. Carring-
ton similarly testified that Aparicio took an unusual
amount of time to train and did not perform as well as
others in the department. Hamilton testified that Apari-
cio, like every employee, had made some excusable mis-
takes, but Rubio testified without contradiction that
Hamilton criticized Aparicio’s job performance and “be-
rated” Rubio for recommending Aparicio for hire.6
Thus, the record establishes that Rubio had reason to
believe not only that Aparicio’s job was in jeopardy, but
also that Aparicio’s poor performance was negatively
affecting Hamilton’s view of Rubio herself.

5 All dates are in 2011, unless noted otherwise.
6 The judge summarized the testimony of Rubio, Carrington, and
Hamilton regarding their views of Aparicio’s work performance with-
out making any specific factual findings regarding the extent to which
Aparicio did or did not meet the Respondent’s expectations.
Beginning in December 2010, Rubio began telling
Aparicio every other day that Aparicio was going to be
fired. As a result of those discussions, Aparicio began
looking for other employment, and Rubio assisted her by
sending her website links to other job opportunities. No-
tably, Aparicio did not complain to Rubio that she felt
harassed or hounded by Rubio’s repeated predictions.
On February 25, Rubio initiated an exchange of instant
messages with Aparicio. Motivated by her belief that the
Respondent had not taken her complaints about Hamil-
ton’s proselytizing seriously, and her belief that Hamil-
ton had exhibited some national origin bias, Rubio pro-
posed that she and Aparicio have a discussion in Spanish
in front of Hamilton to see if she would get upset and
“say something stupid.” Aparicio declined. Rubio then
raised the subject of Hamilton’s displeasure with Apari-
cio’s performance, her inadequate training, and her risk
of discharge. She wrote in part:
[Hamilton]’s super-mad with me because it’s really dif-
ficult for you with this job. She’s pissed off that I rec-
ommended you without knowing . . . .
And the only reason she hasn’t fired you is because she
has to prove that you can’t do the job and because she
was scolded for the way the guy who quit [sic] [.]
Rubio also complained to Aparicio that Hamilton had
not let her train Aparicio well at the outset. Rubio’s in-
stant message to Aparicio also stated: “If you don’t un-
derstand what she’s explaining to you, you are worth
nothing. If you don’t understand something, just play
dumb and ask me or Paul through IM.”
In late February, Hamilton asked Aparicio why her
performance had been declining and why she had be-
come less communicative. Aparicio replied that Rubio
had repeatedly told her that she was going to be fired,
and she provided Hamilton with a copy of Rubio’s Feb-
ruary 25 instant messages. Disturbed by this news, Ham-
ilton informed her superiors and showed them the instant
messages.
On March 4, the Respondent discharged Rubio. The
judge implicitly credited Senior Vice President Steve
Manuszak’s testimony that Rubio was discharged be-
cause she had “harassed” Aparicio by allegedly lying to
her and telling her that she was going to be fired and for
vindictively planning to manipulate and entrap Hamilton
by speaking Spanish around her.
In finding no violation for Rubio’s discharge, the judge
found that the only arguably protected concerted activity
that Rubio had engaged in was her complaint to man-
agement in January about Hamilton’s religious emails.
The judge found no evidence that the Respondent har-
bored any animus against Rubio for making that com-
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plaint and no evidence of a connection between this
complaint and her discharge, which occurred 2 months
later. The judge instead found that Rubio was discharged
because of her February 25 instant messages to Aparicio,
implicitly finding, without explanation, that those instant
messages did not constitute protected concerted activity.
We agree with the judge, for the reasons he stated, that
the record fails to show that Rubio’s complaint to man-
agement about Hamilton’s religious overtures played any
role in the Respondent’s decision to discharge her. Con-
trary to the judge, however, we find that Rubio was en-
gaged in protected concerted activity when, in the Febru-
ary 25 instant messages and during many conversations
in the preceding months, Rubio told Aparicio that her job
was in jeopardy. Because the Respondent admits this
activity was a significant reason for her discharge, and
because the Respondent did not demonstrate that it
would have discharged Rubio for lawful reasons even in
the absence of her protected activity, we find the dis-
charge violated the Act.7
Employee conduct is protected under Section 7 of the
Act when it is “concerted and engaged in for the purpose
of mutual aid or protection.” Hoodview Vending Co.,
359 NLRB 355, 357 (2012) (internal quotations omitted).
Generally speaking, a conversation constitutes concerted
activity when “‘engaged in with the object of initiating or
inducing or preparing for group action or [when] it [has]
some relation to group action in the interest of the em-
ployees.’” Meyers Industries, 281 NLRB 882, 887
(1986) (Meyers II) (quoting Mushroom Transportation
Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964)), affd.
sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987).
Additionally, the Board has held that employee conversa-
tions about job security are “inherently concerted.”
Hoodview Vending Co., 359 NLRB 355, 357.
It is clear that one employee’s warning to another that
the latter’s job is at risk constitutes protected conduct
under the Act. In Jhirmack Enterprises, 283 NLRB 609

7 In its answering brief, the Respondent asserts that the General
Counsel did not argue to the judge that Rubio’s February 25 instant
messages constituted protected concerted activity, thereby hinting at an
argument that the issue is not properly before the Board. We disagree.
Par. 4(d) of the complaint alleges that Rubio and other employees en-
gaged in protected concerted activity by complaining amongst them-
selves about the Respondent’s alleged national origin and religious
discrimination, favoritism toward certain employees, insufficient train-
ing of employees, and other matters concerning wages, hours and work-
ing conditions. Further, the General Counsel, in his posthearing brief to
the judge, broadly argued that Rubio engaged in protected concerted
activities by speaking, emailing, and instant messaging with her col-
leagues about working conditions. Rubio’s February 25 instant mes-
sages, which were a focus of the hearing and the Respondent’s stated
reason for her discharge, fall well within the language of the complaint
and the General Counsel’s arguments to the judge.
(1987), the Board found that employee Allison was en-
gaged in protected concerted activity when she advised a
coworker, Ramsey, that several other employees had
complained to management about his slow rate of work.
The Board found that Allison’s purpose in relaying the
complaints to Ramsey was “to encourage him to take
corrective action to protect his job.” Id. at 609 fn. 2.
Consequently, the Board found that “Allison’s conduct
was clearly undertaken for the mutual aid and protection
of a fellow employee and therefore constituted actual
protected concerted activity.” Id. That Ramsey was up-
set by Allison’s news did not affect the Board’s finding.
See also Tracer Protection Services, 328 NLRB 734,
740–741 (1999) (holding that “a communication from
one employee to another in an attempt to protect the lat-
ter’s employment constitutes protected concerted activi-
ty”).
Consistent with the precedent cited above, we find that
Rubio’s discussions with Aparicio, by instant message
and in person, were protected by the Act. Because Rubio
and Aparicio were discussing Aparicio’s job security,
those conversations were inherently concerted.
Hoodview Vending Co., 359 NLRB 355, 357. Moreover,
Rubio’s discussion with Aparicio by instant message on
February 25 contemplated group action: Rubio proposed
that Aparicio approach Rubio or Carrington for help with
tasks that Aparicio did not understand to avoid irritating
Hamilton.
Additionally, we find that the conversations between
Rubio and Aparicio were for employees’ “mutual aid or
protection.” As explained in Tracer Protection, 328
NLRB at 741, and Jhirmack, 283 NLRB at 609 fn. 2, one
employee’s communication to another in an attempt to
protect the latter’s employment satisfies Section 7’s “mu-
tual aid or protection” requirement. Moreover, Rubio
testified without contradiction that she informed Aparicio
about her risk of discharge because Hamilton had criti-
cized Aparicio’s job performance and had “berated” Ru-
bio for recommending Aparicio for employment. Rubio
further testified without contradiction that she believed
that “people who weren’t doing their job correctly usual-
ly got written up and terminated.” Accordingly, we find
that Rubio initiated the conversations to encourage Apa-
ricio to improve her job performance for Aparicio’s sake
and also to curtail Hamilton’s criticism of Rubio herself.8

8 Member Miscimarra does not reach or rely upon the majority’s
discussion of the elements of “concerted” activity and “mutual aid or
protection,” including the majority’s reference to “inherently concert-
ed” conduct, and he disagrees with his colleagues’ finding that Rubio’s
statements to Aparicio constituted protected concerted activity. Like
the judge, Member Miscimarra would dismiss the complaint’s allega-
tion that Rubio’s discharge was unlawful. Member Miscimarra be-
FOOD SERVICES OF AMERICA, INC. 1015
We reject the Respondent’s argument that Rubio’s
statements to Aparicio were unprotected because the
Respondent never intended to terminate Aparicio. Em-
ployee statements are unprotected if they are shown to be
maliciously untrue, i.e., if they are knowingly false or
made with reckless disregard for their truth or falsity.
See, e.g., Valley Hospital Medical Center, 351 NLRB
1250, 1252 (2007), enfd. sub nom. Nevada Service Em-
ployees Local 1107 v. NLRB, 358 Fed. Appx. 783 (9th
Cir. 2009). Hamilton’s testimony that she had no plan or
desire to discharge Aparicio, if true, shows at most that
Rubio’s statements were inaccurate, not that they were
maliciously untrue. See, e.g., Sprint/United Management
Co., 339 NLRB 1012, 1018 (2003). Again, Rubio testi-
fied without contradiction that her statements were based
on Hamilton’s repeated criticism of Aparicio’s work per-
formance as well as Hamilton’s castigation of Rubio for
recommending that Aparicio be hired. Rubio may have
misjudged Hamilton’s intended course of action, but
there is no evidence of malice.
We also reject the Respondent’s characterization of
Rubio’s statements to Aparicio as “harassment” unpro-
tected by the Act. It is true that Rubio frequently repeat-
ed her statements to Aparicio and that Aparicio felt dis-
tressed about the prospect of losing her livelihood. Nei-
ther the repetition nor the impact of Rubio’s statements
renders them unprotected, however. See Jhirmack, 283
NLRB at 609 (finding protected employee’s statements
about a coworker’s poor performance despite fact that
statements upset coworker); see also Ryder Transporta-
tion Services, 341 NLRB 761, 761 (2004) (It is well set-
tled that the Act allows employees to engage in persistent
union solicitation even when it annoys or disturbs the

lieves Rubio’s actions were unprotected because, among other things,
she instructed Aparicio to remain on the job and disregard her supervi-
sor, Hamilton (for example, instructing Aparicio to “just play dumb and
ask me or Paul [Carrington] through IM” “[i]f you don’t understand
something [Hamilton is explaining]”). In so instructing Aparicio, Ru-
bio did not advocate a permissible protest, work stoppage, or other
protected concerted activity. Cf. Krist Oil Co., 328 NLRB 825, 830
(1999) (explaining that “the accepted industrial norm is that if an em-
ployee is working, and there is a claim of employer misconduct di-
rected at her, the employee should continue to work, make the claim,
and subsequently receive a remedy for any proven misconduct”). The
record also reveals that Respondent lawfully focused on this aspect of
Rubio’s misconduct, as evidenced in the subsequent conversation be-
tween Senior Vice President Bixby and Paul Carrington (Rubio’s boy-
friend) after Rubio’s discharge. Bixby stated that Carrington would
have a “future” if he “stopped talking to [Rubio] and tried to move on
and learn how to work with [Hamilton].” As indicated in fn. 11, infra,
Member Miscimarra disagrees with the majority’s finding that this
conversation constituted an unlawful threat of unspecified reprisals
unless Carrington ceased having discussions with Rubio; in Member
Miscimarra’s view, the record renders implausible such an interpreta-
tion of this conversation.
employees who are being solicited.), enfd. sub nom. Ry-
der Truck Rental v. NLRB, 401 F.3d 815 (7th Cir. 2005).
We further emphasize that Aparicio never complained to
Rubio that she felt harassed by Rubio’s comments and
never asked Rubio to stop making them. Under these
circumstances, we do not find that Rubio engaged in un-
protected harassment of Aparicio.9
Because the General Counsel has proved that protected
concerted activity was a motivating factor in Rubio’s
discharge, the burden shifts to the Respondent to prove
that it would have discharged Rubio on March 4 for non-
discriminatory reasons even absent Rubio’s protected
activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). The Respondent contends it would have dis-
charged Rubio regardless of her protected concerted ac-
tivity for soliciting Carrington to forward to Rubio com-
pany emails supporting her claims of religious harass-
ment and retaliation, which resulted in Carrington send-
ing a significant amount of confidential business infor-
mation outside the company to a former employee. That
defense, however, obviously lacks merit because the Re-
spondent discharged Rubio before she engaged in that
alleged misconduct. See Hawaii Tribune-Herald, 356
NLRB 661, 662 (2011) (where alleged misconduct oc-
curs after a discharge, “[t]here can be no issue whether it
did or could have justified th[e] discharge”), enfd. 677
F.3d 1241 (D.C. Cir. 2012).
The Respondent alternatively argues that, in light of
Rubio’s postdischarge conduct, she should be denied the
usual remedies of reinstatement and backpay. For the
Board to deny these remedies, the Respondent must
prove that Rubio engaged in postdischarge misconduct
“‘so flagrant as to render [her] unfit for further service, or
a threat to efficiency in the plant.’” Id. (quoting
O’Daniel Oldsmobile, Inc., 179 NLRB 398, 405 (1969)).
That standard is not met here. After her discharge, Rubio

9 We disagree with our dissenting colleague that Rubio’s February
25 instant messages are unprotected because they constituted an at-
tempt by her to subvert Supervisor Hamilton. The Respondent does not
argue that it viewed Rubio’s “play dumb” remark as subversive of
Hamilton’s authority, that it discharged her for that reason, or that this
remark rendered unprotected Rubio’s separate statements that Apari-
cio’s job was in jeopardy. In any event, we do not read Rubio’s “play
dumb” remark as an instruction to disobey Hamilton. Rubio merely
suggested that Aparicio ask her coworkers for help with tasks she did
not understand to avoid the ire of Hamilton.
The General Counsel argues that Rubio was also engaged in protect-
ed concerted activity when she proposed to Aparicio that they speak
Spanish near Hamilton to provoke a response. It is unnecessary to pass
on this issue. We have already found that Sec. 7 of the Act protected
other statements that motivated Rubio’s discharge, and the Respondent
does not contend that, even absent those other protected statements, it
would have discharged Rubio for planning to provoke Hamilton.
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
asked Carrington to forward work emails to her docu-
menting Rubio’s complaints of religious harassment and
retaliation. As described above, Carrington responded
by forwarding not only emails documenting Rubio’s
complaints, but numerous emails containing confidential
business data. The Respondent points to no evidence
that Rubio asked Carrington to transfer this confidential
information, and there is no basis to find that she reason-
ably foresaw that Carrington would do so in response to
her request. As a result, we find that the Respondent has
not established that Rubio is “unfit for further service” or
a threat to efficiency in the workplace. Therefore, we
shall award the traditional remedies for her unlawful dis-
charge. Cf. LA Film School, LLC, 358 NLRB 130, 130
fns. 2 & 12 (2012) (finding that employer failed to prove
that discriminatee was responsible for deleting her hard-
drive partition after discharge and ordering reinstatement
and backpay).
2. Vice President Bixby’s conversation with
employee Carrington
On Friday, March 4, shortly after the Respondent dis-
charged Rubio, Senior Vice President Bixby summoned
Carrington to his office and informed him that “his name
had come up as being connected with [Rubio’s].” Bixby
also told Carrington that “[he] could really have a future
with the company if [he] stopped talking to [Rubio] and
tried to move on and learn how to work with [Hamil-
ton],” and that Carrington could “come in with a clean
slate on Monday.” We agree with the judge that these
statements did not constitute an unlawful interrogation of
Carrington or create the impression that the Respondent
was engaging in surveillance of employees’ protected
concerted activities.10 However, contrary to the judge,
we find that Bixby implicitly threatened Carrington with
unspecified reprisals. Given that the Respondent had just
discharged Rubio for engaging in protected concerted
discussions with Aparicio, Carrington would reasonably
understand Bixby to be saying that Carrington’s “clean
slate” would be sullied, and his future with the company
jeopardized, if he thereafter spoke with Rubio. There
was no reason for Carrington to think that protected con-
certed discussions were exempted from Bixby’s thinly
veiled threat. Thus, we conclude that the Respondent, by
Bixby, violated Section 8(a)(1) of the Act by implicitly

10 In adopting the judge’s dismissal of the interrogation allegation,
we note that an employer’s declarative statements can constitute an
interrogation where those statements reasonably call for an employee to
respond and reveal whether he or she has engaged in protected activity.
See, e.g., Children’s Services International, 347 NLRB 67, 79–80
(2006) (finding that manager interrogated employee when she accused
her of creating a union flyer). Bixby’s comments, however, did not call
for such a response from Carrington.
threatening Carrington with unspecified reprisals if he
were to engage in protected concerted discussions with
Rubio.11
3. The Respondent’s solicitation policy
The Respondent maintains the following solicitation
policy in an employee handbook distributed to all new
employees:
Solicitation discussions of a non-commercial nature, by
Associates, are limited to the non-working hours of the
solicitor as well as the person being solicited and in
non-work areas. (Working hours do not include meal
breaks or designated break periods.)
We find, contrary to the judge, that the above rule un-
lawfully restricts Section 7 activity because it prohibits
solicitation, including union solicitation, in work areas
during nonwork time. Absent special circumstances not
present here, “[e]mployers may ban solicitation in work-
ing areas during working time but may not extend such
bans to working areas during nonworking time.” UPS
Supply Chain Solutions, 357 NLRB 1295, 1296 (2011)
(citing Restaurant Corp. of America v. NLRB, 827 F.2d
799, 806 (D.C. Cir. 1987) (“[A]n employer may not gen-
erally prohibit union solicitation . . . during nonworking
times or in nonworking areas.”)). The rule at issue here
expressly provides that solicitations are limited to non-
working hours “and . . . non-work areas” (emphasis add-
ed), indicating that both conditions must be satisfied be-
fore solicitation is permitted. The Respondent argues

11 The complaint alleges that, in this conversation, Bixby “orally
promulgated an overly broad and discriminatory rule prohibiting its
employees from talking to other employees.” We disagree. Bixby’s
statement to a single employee did not amount to the promulgation of a
rule of general applicability. See Flamingo Las Vegas Operating Co.,
359 NLRB 873, 874 (2013); St. Mary’s Hospital of Blue Springs, 346
NLRB 776, 777 (2006).
Contrary to his colleagues, Member Miscimarra would dismiss the
complaint’s allegation that the Respondent, through Bixby, threatened
Carrington with unspecified reprisals. In Member Miscimarra’s view,
Bixby’s comment to Carrington after Rubio’s discharge––to the effect
that Carrington should “move on and learn how to work with [Hamil-
ton]” and come in with a “clean slate on Monday”––was a permissible
statement that Carrington needed to take direction from his supervisor,
in contrast with Rubio’s repeated efforts to subvert Hamilton (which
included, as noted previously, Rubio’s message that Aparicio should
“play dumb” when receiving instructions from Hamilton and instead
consult Rubio or Carrington). Member Miscimarra disagrees with the
majority’s finding that Bixby threatened Carrington with unspecified
reprisals when Bixby said that Carrington would have a “future” if he
“stopped talking to Rubio.” This comment was made in the context of
Bixby discussing the need for Carrington to accept direction from Su-
pervisor Hamilton (who Rubio repeatedly undermined); the record
reveals it is implausible to regard Bixby’s comment as a literal demand
that Carrington––Rubio’s boyfriend––cease having discussions with
Rubio.
FOOD SERVICES OF AMERICA, INC. 1017
that the rule permits solicitation in work areas when both
employees are on nonwork time. Perhaps that was what
the Respondent meant to say, but it is not what the rule
says. Accordingly, by maintaining the rule, the Re-
spondent violated Section 8(a)(1).
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Respondent violated Section 8(a)(1) of the Act
by maintaining the provisions relating to compensation
and confidentiality in its employee handbook and the
restriction on discussing payroll or information about
other employees contained in its confidentiality and non-
disclosure agreement.
3. The Respondent violated Section 8(a)(1) of the Act
by discharging Elba Rubio for engaging in protected
concerted activity.
4. The Respondent violated Section 8(a)(1) of the Act
by implicitly threatening employee Paul Carrington with
unspecified reprisals if he were to speak with employee
Elba Rubio.
5. The Respondent violated Section 8(a)(1) of the Act
by maintaining in its employee handbook a rule that pro-
hibits employees from engaging in solicitation in work
areas during nonwork time.
AMENDED REMEDY
In addition to the remedies recommended by the judge,
we shall order the Respondent to take the following af-
firmative action designed to effectuate the policies of the
Act.
Having found that the Respondent violated Section
8(a)(1) of the Act by discharging Elba Rubio because she
engaged in protected concerted activity, we shall order
the Respondent to offer her full reinstatement to her for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed. We
shall further order the Respondent to make Rubio whole
for any loss of earnings and other benefits suffered as a
result of its unlawful conduct. Backpay shall be comput-
ed in accordance with F.W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB
6 (2010). We will order the Respondent to compensate
Elba Rubio for the adverse tax consequences, if any, of
receiving a lump-sum backpay award and to file a report
with the Social Security Administration allocating the
backpay award to the appropriate calendar quarters.
We shall additionally order the Respondent to preserve
and provide all records necessary to analyze the amount
of backpay due to Rubio. Further, we shall order the
Respondent to remove from its files any and all refer-
ences to Rubio’s unlawful discharge and to notify her in
writing that this has been done and that the discharge will
not be used against her in any way.
Having found that the Respondent violated Section
8(a)(1) by threatening Paul Carrington with unspecified
reprisals if he were to speak with Elba Rubio and by
maintaining unlawful restrictions in its employee hand-
book and its confidentiality and nondisclosure agree-
ment, we shall order the Respondent to cease and desist
from such unlawful conduct and to rescind the unlawful
restrictions.
The standard affirmative remedy for maintenance of
unlawful work rules is immediate rescission of the of-
fending rules; this remedy ensures that employees may
engage in protected activity without fear of being sub-
jected to the unlawful rule. Guardsmark, LLC, 344
NLRB 809, 812 (2005), enfd. in relevant part 475 F.3d
369 (D.C. Cir. 2007). Pursuant to Guardsmark, the Re-
spondent may comply with the Order by rescinding the
unlawful handbook rules and republishing its employee
handbook without them. We recognize, however, that
republishing the handbook could entail significant costs.
Accordingly, the Respondent may supply the employees
either with handbook inserts stating that the unlawful
rules have been rescinded, or with new and lawfully
worded rules on adhesive backing that will cover the
unlawfully worded rules until it republishes the hand-
book either without the unlawful provisions or with law-
fully worded rules in their stead. Any copies of the
handbook that are printed with the unlawful rules must
include the inserts before being distributed to employees.
Id. at 812 fn. 8.
In addition to the physical posting of paper notices, the
Respondent shall be required to distribute the notices
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. J. Picini Flooring, 356 NLRB 11
(2010).
ORDER
The Respondent, Food Services of America, Inc., a
Subsidiary of Services Group of America, Inc., Scotts-
dale, Arizona, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging employees because they engage in
protected concerted activities.
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Maintaining the compensation provision in its em-
ployee handbook, as further explained by the confidenti-
ality provision contained therein.
(c) Maintaining a mandatory confidentiality and non-
disclosure agreement that employees would reasonably
interpret as restricting their rights to discuss their terms
and conditions of employment.
(d) Maintaining a rule in its employee handbook that
prohibits employees from engaging in solicitation in
work areas during nonwork time.
(e) Threatening employees with unspecified reprisals
if they speak with other employees, including about
terms and conditions of employment.
(f) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the compensation provision contained in
its employee handbook.
(b) Rescind the no-solicitation rule in its employee
handbook.
(c) Furnish all current employees with inserts for the
current employee handbook that (1) advise that the un-
lawful rules have been rescinded, or (2) provide the lan-
guage of lawful rules; or publish and distribute a revised
employee handbook that (1) does not contain the unlaw-
ful rules, or (2) provides the language of lawful rules.
(d) Rescind the confidentiality and nondisclosure
agreement or revise it to remove any language that pro-
hibits or may reasonably be read to prohibit employees
from discussing wages or other terms and conditions of
employment.
(e) Notify all current employees that the confidentiali-
ty and nondisclosure agreement has been rescinded or, if
it has been revised, provide them a copy of the revised
agreement.
(f) Within 14 days from the date of this Order, offer
Elba Rubio full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any other rights
or privileges previously enjoyed.
(g) Make Elba Rubio whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against her, in the manner set forth in the amended
remedy section of this decision.
(h) Compensate Elba Rubio for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file a report with the Social Security Administration
allocating the backpay award to the appropriate calendar
quarters.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(j) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Elba Rubio, and within 3 days thereafter, notify Elba
Rubio in writing that this has been done and that the dis-
charge will not be used against her in any way.
(k) Within 14 days after service by the Region, post at
its Scottsdale, Arizona facility copies of the attached
notice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since February 22, 2011.
(l) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
FOOD SERVICES OF AMERICA, INC. 1019
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in protected concerted
activities.
WE WILL NOT maintain the Compensation provision in
our employee handbook, as further explained by the
Confidentiality provision contained therein.
WE WILL NOT maintain a mandatory confidentiality
and nondisclosure agreement that you would reasonably
interpret as restricting your right to discuss your terms
and conditions of employment.
WE WILL NOT maintain a rule in our employee hand-
book that prohibits employees from engaging in solicita-
tion in work areas during nonwork time.
WE WILL NOT threaten you with unspecified reprisals if
you speak with other employees, including about terms
and conditions of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the Compensation provision con-
tained in our employee handbook.
WE WILL rescind the no-solicitation rule in our em-
ployee handbook.
WE WILL furnish all current employees with inserts for
the current edition of the employee handbook that (1)
advise that the unlawful rules, above, have been rescind-
ed, or (2) provide the language of lawful rules; or publish
and distribute to all current employees a revised employ-
ee handbook that (1) does not contain the unlawful pro-
visions, or (2) provides the language of lawful rules.
WE WILL rescind the Confidentiality and Nondisclo-
sure Agreement or revise it to remove any language that
prohibits or may reasonably be read to prohibit you from
discussing wages or other terms and conditions of em-
ployment.
WE WILL notify you that the Confidentiality and Non-
disclosure Agreement has been rescinded or, if it has
been revised, provide you with a copy of the revised
agreement.
WE WILL, within 14 days from the date of the Board’s
Order, offer Elba Rubio full reinstatement to her former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.
WE WILL make Elba Rubio whole for any loss of earn-
ings and other benefits resulting from her discharge, less
any net interim earnings, plus interest.
WE WILL compensate Elba Rubio for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file a report with the Social Security
Administration allocating the backpay award to the ap-
propriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Elba Rubio, and WE WILL, within 3 days
thereafter, notify her in writing that this has been done
and that the discharge will not be used against her in any
way.
FOOD SERVICES OF AMERICA, INC., A
SUBSIDIARY OF SERVICE GROUP OF AMERICA
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-063052 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273–1940.
Johannes Lauterborn, Esq., for the General Counsel.
Richard Walker, Esq. (Walker & Peskind, PLLC), for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on January 24–27, 2012, in Phoenix, Arizona.
The complaint here, which issued on October 31, 2011,1 and
was based upon an unfair labor practice charge filed on August
22 by Paul Louis Carrington, alleges that the Respondent has

1 Unless indicated otherwise, all dates referred to here relate to the
year 2011.
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
maintained overly broad and discriminatory rules of confidenti-
ality and nondisclosure that its employees are required to sign
and which are also contained in its employee handbook. The
complaint further alleges that Respondent, by Scott Bixby, its
senior vice president, interrogated its employees about their
concerted activities, orally promulgated an overly broad and
discriminatory rule prohibiting its employees from talking to
other employees, threatened its employees with unspecified
reprisals if they engaged in concerted activities, and created an
impression among its employees that their concerted activities
were under surveillance by the Respondent. At the conclusion
of his case, counsel for the General Counsel moved to amend
the complaint to also allege that Respondent violated Section
8(a)(1) of the Act by promulgating overly broad rules prohibit-
ing employees from giving personal references and prohibiting
employees from disclosing personal telephone numbers. Final-
ly, the complaint alleges that the Respondent further violated
Section 8(a)(1) of the Act by discharging Carrington (on March
7) and Elba Rubio (on March 4) because they engaged in, or
because Respondent believed that they engaged in, protected
concerted activities.
I. JURISDICTION
The Respondent admits, and I find, that it has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. FACTS AND ANALYSIS
A. Confidentiality and Nondisclosure Allegations
Upon beginning employment with the Respondent, employ-
ees must sign its confidentiality and nondisclosure agreement,
which states, inter alia:
As a condition of Services Group of America granting you
access to its confidential information, the value of which you
hereby acknowledge and in addition to any other confidential-
ity agreements and obligations that govern your conduct, you
agree to the following requirements regarding your access to
the Company’s confidential information:
“Confidential information” means any and all information,
whenever accessed or received, related to Company or any af-
filiate, including but not limited to, information relating to:
financial matters, business plans, strategies, customers, mar-
keting, product or service promotions, purchasing, vendors,
discounts, rebates, earned marketing income (“EMl”), EMI
tracking methods, payroll or employee information (other
than payroll or employee information about Associate), busi-
ness techniques, business tools· (including, without limitation,
Company’s B/I, EIS, payroll and infinium systems), analysis,
contractual terms, costs, margins, ownership structure, fi-
nancings or other information. Confidential Information does
not include information that is generally available to the pub-
lic through no improper action or inaction or breach of Asso-
ciate.
Confidentiality; Ownership. Associate understands that
Company and its affiliates value highly their Confidential In-
formation, which they have developed at substantial cost and
effort, and which are important Company and affiliate assets.
Associate agrees that he or she will strictly maintain the con-
fidentiality and proprietary nature of any and all Confidential
Information. Associate agrees not to use or disclose any Con-
fidential Information, directly or indirectly, except in further-
ance of the Company’s business or as consented to in writing
in each instance by a Company officer, or, upon reasonable
prior notice to Company, as required by law. Associate
agrees not to access, read, forward, remove from Company
premises, copy, or otherwise obtain or retain any Confidential
Information except as necessary to perform his or her Job
with the Company. This Agreement applies to Confidential
Information in any form or format, including without limita-
tion oral, visual, written, computer records, photographs and
tape recordings, and applies to Confidential Information ac-
cessed by Associate before, as well as after, entering into this
Agreement. This Agreement shall apply throughout Associ-
ate’s employment with Company and after the termination of
such employment at any time and for any reason (with or
without cause) by Company or Associate. Associate
acknowledges that Company and its affiliates are the sole
owners of the Confidential Information.
Associate disclaims any right, title or interest in or to the Con-
fidential Information, including without limitation any Confi-
dential Information developed by Associate. Upon termina-
tion of employment (for any reason) Associate agrees to re-
turn to the Company all documents, discs or other items con-
taining Confidential Information.
Remedies. Associate agrees that Company shall be entitled to
preliminary and permanent injunctive relief, specific perfor-
mance and other equitable relief, without the necessity of
posting any bond or other security, in aid of litigation, or arbi-
tration, if any arbitration agreement is applicable, to prevent
any violation or threatened violation of this Agreement, in ad-
dition to any and all other legal or equitable remedies that
may be available to Company. The protections afforded by
this Agreement are intended to be and shall be in addition to
any and all other protections afforded by law, equity, or
agreement.
In addition, the Respondent’s employee handbook, distributed
to all new employees, contains the following rules, also alleged
to be overly restrictive, and to violate Section 8(a)(1) of the
Act:
SGA GUIDING PRINCIPLES
. . . .
Outside of our company, we remain quiet and safeguard our
proprietary knowledge.
. . . .
COMPENSATION
The Company views your salary as a confidential matter and
encourages you to discuss questions or concerns only with
your Department Manager or Branch President.
CONFIDENTIALITY
FOOD SERVICES OF AMERICA, INC. 1021
We are a privately-held company. While many of our com-
petitors are free with disclosing their proprietary information,
we have a very strict policy in that regard. No one outside the
Company needs to know anything about our Company unless
the Chairman or President has identified a specific benefit to
the Company. This includes the press and news media in
general and trade journals and industry groups in particular.
The latter includes vendors, trade associations and competi-
tors wherever we meet them (trade shows, seminars, conven-
tions or other social/business functions). “Disinterested” third
parties you meet at non-industry business functions or purely
social occasions also do not need to know anything about our
Company. Unauthorized disclosure of information about our
Company, no matter how harmless it may seem, can be
grounds for discipline up to an including termination.
SOLICITATION
. . . .
Solicitation discussions of a non-commercial nature, by Asso-
ciates, are limited to the non-working hours of the solicitor as
well as the person being solicited and in non-work areas.
(Working hours do not include meal breaks or designated
break periods.)
There is a very thin line between what information an em-
ployer may lawfully restrict employees from sharing or trans-
mitting, and when such restrictions unlawfully hinder employ-
ees’ Section 7 rights. Many recent Board cases are helpful in
making this determination, but it remains a difficult one. Lafa-
yette Park Hotel, 326 NLRB 824, 825 (1998), stated: “The
appropriate inquiry is whether the rules would reasonably tend
to chill employees in the exercise of their Section 7 rights.
Where the rules are likely to have a chilling effect on Section 7
rights, the Board may conclude that their maintenance is an
unfair labor practice even absent evidence of enforcement.” In
Lutheran Heritage Village-Livonia, 343 NLRB 646, 647
(2004), the Board was more specific:
Our inquiry into whether the maintenance of a challenged rule
is unlawful begins with the issue of whether the rule explicitly
restricts activities protected by Section 7. If it does, we will
find the rule unlawful.
If the rule does not explicitly restrict activity protected by Sec-
tion 7, the violation is dependent upon a showing of one of the
following: (1) employees would reasonably construe the lan-
guage to prohibit Section 7 activity; (2) the rule was promul-
gated in response to union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights.
The agreement executed by employees beginning their em-
ployment with the Respondent defines “confidential infor-
mation” as “any and all information . . . including but not lim-
ited to, information relating to . . . payroll or employee infor-
mation (other than payroll or employee information about As-
sociate).” The agreement states further: “Associate agrees that
he or she will strictly maintain the confidentiality and proprie-
tary nature of any and all Confidential Information” and “Asso-
ciate agrees not to access, read, forward, remove from Compa-
ny premises, copy or otherwise obtain or retain any Confiden-
tial Information except as necessary to perform his or her job
with the Company.” This rules excepts from the confidentiality
definition payroll “information about Associate,” in other
words payroll information about the employee himself or her-
self; a reasonable reading of this provision is that each employ-
ee could discuss his/her terms and conditions of employment
with fellow employees, or anybody else, without fear of disci-
pline. However, the discussions of terms and conditions of
employment requires the participation of two or more employ-
ees. If one of those employees refuses to permit the other em-
ployees to discuss his terms and conditions of employment,
pursuant to the Respondent’s rule, the discussion would be
unduly restricted, or foreclosed entirely, thereby limiting the
employees’ protected concerted activities. I therefore find that
this restriction violates Section 8(a)(1) of the Act as alleged in
paragraph 4(a) of the complaint. Labinal, Inc., 340 NLRB 203,
210 (2003).
The employee handbook contains three statements regarding
confidentiality. “SGA Guiding Principal” at page 4, states:
“Outside of our company, we remain quiet and safeguard our
proprietary knowledge,” while under “Compensation” at page
10, the Handbook states: “The Company views your salary as a
confidential matter and encourages you to discuss questions or
concerns only with your Department Manager or Branch Presi-
dent.” [emphasis supplied] Finally, under “confidentiality” the
Handbook states at page 18: “No one outside the Company
needs to know anything about our Company unless the Chair-
man or President has identified a specific benefit to the Com-
pany.” Although the compensation provision set forth above
only “encourages” employees to discuss their salaries with the
department manager or branch president, rather than stating that
discussions of salary with others are grounds for discipline, that
sentence cannot be read in a vacuum. It says that the Respond-
ent views salaries as a confidential manner and should only be
discussed with the department manager or branch president,
with “only” underlined, and the confidentiality provision states
that nobody outside the company needs to know anything about
the Respondent’s operation, and that unauthorized disclosure of
information about the company can be grounds for discipline. I
find that an employee reading these provisions together would
reasonably feel that his/her Section 7 rights are being restricted.
I therefore find that these provisions in the Employee Hand-
book violate Section 8(a)(1) of the Act.
Finally, under “Solicitation,” at page 24, the employee hand-
book states:
Solicitation discussions of a non-commercial nature, by Asso-
ciates, are limited to the non-working hours of the solicitor as
well as the person being solicited and in non-work areas.
(Working hours do not include meal breaks or designated
break periods.)
In Barney’s Club, 227 NLRB 414, 416 (1976), the administra-
tive law judge stated:
The right of employees to self-organization has often come
into conflict with the right of employers to maintain discipline
in their establishments and to control the use of their property.
Over the years, the Board and the courts have attempted to
reconcile these conflicts through the formulation of rules of
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
law which attempt to maximize the scope of the rights of each
to the extent that they do not unduly diminish the rights of the
other. . . In attempting to reconcile the legitimate interests of
both employers and unions, the Board has looked at the nature
of the business. Thus, the rules which have evolved relating to
industrial establishments have not been applied to retail stores.
[Citations omitted.]
In the instant situation, limiting solicitation to nonworking
hours is clearly lawful, especially since the rule specifies that
meal or break periods are not included in working hours. Our
Way, Inc., 268 NLRB 394 (1983). As the rule also limits so-
licitations to nonworking areas, the issue is whether this limita-
tion is lawful. As it properly restricts solicitations to the time
that employees are working, and in working areas, while allow-
ing other solicitation, I find that this provision is lawful, and I
therefore recommend that this allegation be dismissed.
Stoddard-Quirk Mfg., Co., 138 NLRB 615 (1962); Golub
Corp., 338 NLRB 515 (2002).
B. Discharges of Rubio and Carrington and Related
8(a)(1) Allegations
Admittedly, the Respondent discharged Rubio on March 4
and Carrington on March 7. The complaint alleges that the
Respondent discharged them because they engaged in, or be-
cause the Respondent believed that they engaged in, protected
concerted activities (allegedly discussing the Respondent’s
national origin and religious discrimination against its employ-
ees, favoritism toward certain employees, insufficient training
of employees and other issues), and that it discharged Carring-
ton because he violated Respondent’s rules involving confiden-
tiality and nondisclosure set forth above in Section A, and to
discourage other employees from engaging in these and other
concerted activities. Respondent defends that Rubio was dis-
charged solely for harassing fellow employee Michelle Apari-
cio by falsely and maliciously telling her that the Respondent
was not happy with her work and planned to fire her. Respond-
ent defends that Carrington was fired 3 days later for coming
into the office on Saturday, March 5, a day that he was not
scheduled to work, accessing Respondent’s email system, and
transmitting over 300 emails, many of which contained Re-
spondent’s confidential trade secret and proprietary infor-
mation, to Rubio’s personal email address, and to his as well.
Respondent is a food service distributor operating from the
State of Minnesota west to Northern California and Alaska,
selling everything from food to paper products and cleaning
supplies. It sells to institutions such as schools, universities,
institutional food service providers, and prisons, as well as
cruise lines and independently owned small food stores, but not
to large grocery stores. In making these sales, the Respondent
employs approximately 450 sales representatives who visit
these customers regularly, and negotiate the products’ price
with each of these customers. Further, the Respondent pur-
chases these products from thousands of different supplier (also
called vendors), storing these products in its warehouses until
they are sold, and delivered to the customers.
Rubio began her employment with the Respondent in May
2008 as a supplier information specialist. Three months later
she applied for and obtained a position of transportation analyst
for Gampac and worked there until June 2010, when she re-
turned to the Respondent in the position of supplier e com-
merce specialist. Her supervisor during the entire period of her
employment with the Respondent was Merissa Hamilton. Car-
rington began his employment with the Respondent in Septem-
ber 2008 as a supplier information specialist. He was laid off in
August 2009 as part of a reduction in force by the Respondent
and was rehired in November 2009 in the same position, the
only laid-off employee who was rehired at that time. His su-
pervisor during the entire period of his employment with the
Respondent was also Hamilton.
The alleged protected concerted activity involving Rubio in-
volved some unwanted religious interaction between Hamilton
and Rubio, who is an agnostic, that was initiated by Hamilton.
Rubio and Hamilton had been friends for some time, but this
friendship ended when Hamilton began proselytizing regarding
her religious convictions. There were a series of emails, initiat-
ed by Hamilton on November 7, 2010. The principal one from
Hamilton to Rubio, states, inter alia:
You need to listen more and stop assuming. I never said I was
mad at you. I am a Christian which means that I don’t hold
hate or anger in my heart when someone does me wrong. I
know you think being a Christian means something else, but
again that would be an incorrect assumption…You seem to be
offended by me…you get upset at decisions I make at work
. . . My sister . . . asked if you were on drugs. My mother was
also really concerned about your behavior.
I love you Elba and I want all your dreams to come true. I see
so much greatness in you, but lately you constantly seem lost.
As a friend I don’t know what to do because you seem to just
keep pushing me away, constantly fighting me.
You might not agree with my beliefs, but I know what my Fa-
ther has done in my life and my husbands life. I know how he
has changed me after I received him. . . . . My blessings come
from my repentance and acceptance of Christ. I don’t think
someone can stop being lost or accomplish their dreams in
complete fullness without him. The fact that every time I
mention him you get offensive, turned off and push away tells
me you know he’s calling you, but your flesh refuses. He has
so many great things planned for your life. He wants you to
live in victory and stop being so upset all the time. He wants
you to have peace and be happy. He loves you. For all this to
occur you have to receive him.
You can completely disagree. You can hate me. You can keep
pushing me away. . . .
Rubio responded later that day, inter alia:
I have never been on drugs, did you ever care to think that
maybe I’m distressed because of my personal life and prob-
lems with my family I can’t control? . . . I don’t disagree with
your decisions at work . . . I’m not a religious person and I
don’t think the fact that you have accepted Jesus in your life
means I need to follow suit. As long as I get the work done
and the project finished I think that should be your major con-
cern, not if I accepted Jesus into my life as my savior . . . .
Hamilton responded, inter alia:
FOOD SERVICES OF AMERICA, INC. 1023
There you go again being offended. I didn’t say you were on
drugs. I didn’t think you were on drugs. My family and
friends asked if you were on drugs based on their observations
of you . . . .
I am concerned about your well being and happiness because
I am your friend. I care about you as a friend way before an
employee. You haven’t been happy for most of the time I’ve
known you. I didn’t say you had to accept Christ. I offered it
as a suggestion because of my satisfaction in life. Just like you
make recommendations on things to me that you like. Well,
you said a few months ago you were dissatisfied. I wouldn’t
be a friend if I kept my faith a secret.
As your boss, I have been concerned because Jeff [presuma-
bly, Jeff Chester, Respondent’s Director of Quality Assur-
ance] asked if you were ok and seemed out of it for the last
couple of months. Your personal life greatly impacts your
work. I have had the same challenge. Becoming a stronger
person emotionally and not being lost in life will do wonders
for your career. You won’t be stuck if you fix these things.
You will be highly promotable . . . .
You don’t have to stay my friend. It’s up to you. But I am not
going to stay in a friendship with you being offended by me
every other day or so. That’s not a healthy friendship. Some-
times people grow apart and that’s ok . . . .
If you just want to be co-workers, then that’s fine . . . There is
so much greatness and happiness waiting for you. But you
will never achieve it being offended and tied up emotionally
by so many things . . . .
Elba, this is about you loving yourself. You loving your life.
You finding the true beauty of you . . . .
Rubio testified that prior to these emails, Hamilton told her
about the church that she joined and attended, and Rubio was
“fine” with that because Hamilton was “sharing” that with her.
However, she took offense at the November emails because
Hamilton was telling her that she should be religious and that
she would be promotable if she were. In January, Rubio com-
plained to Steve Manuszak, Respondent’s senior vice president
of associate services, and gave him these emails that she re-
ceived from Hamilton and he told her that he would have Scott
Bixby, Respondent’s senior vice president, and Chester talk to
Hamilton, and a few days later she learned that Hamilton was
spoken to about the incident. Carrington testified that he dis-
cussed Hamilton’s emails and Rubio’s religious discrimination
charge with her and, on occasion, with employees Aparicio and
Jeff Ambruster. Ambruster testified that Rubio told him about
the November emails that she received from Hamilton and then
forwarded the emails to him, saying, “Can you believe this?”
Aparicio testified that in about January, Rubio told her that she
was going to “file a complaint” against Hamilton and she
showed her the November 7 emails. Aparicio read the emails,
but found them “normal” and “just a comment.”
Hamilton testified that in January she was informed that Ru-
bio had made a religious harassment complaint against her with
the Respondent. She was surprised at Rubio’s complaint be-
cause up to a few months earlier they were very close friends
and “talked about religion all the time” throughout their friend-
ship. She knew that Rubio and she did not share the same reli-
gious beliefs, but Rubio never told her that she didn’t want to
discuss religion with her. She testified further that she did not
resent Rubio’s complaint and “it didn’t impact my perspective
of her as an employee because I looked at our relationship at
work and our relationship personally as separate things.”
Bixby testified that he learned in January of Rubio’s religious
complaint against Hamilton and he and Manuszak “took action
against that to make sure that whatever had occurred stopped.”
He believes that, within a week Chester, Hamilton’s direct su-
pervisor, met with her and told her that conversations about
religion with an employee who reports to her, were inappropri-
ate in or outside of work and that it should stop. Manuszak
testified that he investigated Rubio’s complaint about Hamilton
and found that Hamilton’s message was “inappropriate” despite
the fact that in the past they were close friends. As a result, he
“coached” Hamilton not to engage in those conversations with
employees, but Hamilton did not receive any written discipline
for this conduct. He also testified that in his conversation with
Rubio about this complaint, she said that was only speaking for
herself.
Rubio was discharged on March 4. Manuszak testified that
the “immediate cause for her termination” was an instant mes-
sage that she sent to Aparicio on February 25. He also testified
that she was also discharged for harassing conduct toward Apa-
ricio, where she misled and lied to her about her standing at the
company. Aparicio began working as a part time employee for
the Respondent in October 2010 (she was recommended for the
job by Rubio) and later became a full time employee; Hamilton
was her supervisor. At one point in the instant message, Rubio
wrote, referring to Hamilton: “I want to try to see if the bitch
says something racist again. Do you remember when she
scolded Monica for speaking Spanish with Celina at her desk?
She can’t say that to you. Let’s talk Spanish when she comes
back several times and see if she can get pissed off and say
something stupid.” Aparicio responded that it could not in-
volve her because she can’t afford to be out of work. Rubio
then wrote: “She’s super-mad with me because it’s really diffi-
cult for you with this job. She’s pissed off that I recommended
you without knowing . . . . And the only reason she hasn’t fired
you is because she has to prove that you can’t do the job and
because she was scolded for the guy who quit.” She also wrote:
“She didn’t let me train you well in the beginning and she
didn’t instruct me or Paul and she got mad and she said that
other people have understood it without problems and because
much of her anger is that I have personal issues with her but she
thinks that because I helped you I screwed her over more.
That’s why she has been harassing you lately.” Rubio ended the
instant message by writing:
The truth is that I didn’t know that this was going to happen to
you. I didn’t provoke her. She has a lot of anger towards me
and she wants to screw me over and screw you over in the
process. Either way, I only recommended you for one thing
and she’s not accustomed and doesn’t like to train people but
she got really paranoid and started screwing with me and
messing with me because she hired you and for other stupidi-
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ty with her ego. If you don’t understand what she’s explaining
to you, you are worth nothing. If you don’t understand some-
thing, just play dumb and ask me or Paul through IM. Every-
thing is because of her ego. Nobody can tell or comment on
anything . . . . She’s also bothered that you walk round the
floor and that you pass the time and chat with people when
she does the same thing . . . .
Aparicio testified that when she began working for the Re-
spondent, she and Rubio were friends, but “we slowly were not
friends anymore” because Rubio was criticizing her work and
was telling her that she was going to be fired. She first told her
in December that she was going to be fired and repeated that
threat every other day. Because of these threats, Aparicio be-
gan looking for another job and Rubio assisted her by sending
her links to websites for other jobs. Aparicio also met with
Hamilton and emailed her to ask if she was satisfied with her
job performance and Hamilton told her that her work was okay.
She did not tell Hamilton about Rubio’s statements to her until
about late February. At that time, Hamilton asked her why she
was not performing as well as previously and why she was not
communicating as she had been. At that time, she told Hamil-
ton that Rubio told her that Hamilton was looking for an excuse
to fire her, and she gave Hamilton the February 25 instant mes-
sage. They had it translated from Spanish to English and on
March 3, Hamilton forwarded it to Chester. His only comment
was “unbelievable.” A few minutes later, Hamilton sent an
email to Chester, stating:
During the time Elba sent this is when she sent me the IM
saying that she wanted to strangle Michelle for not doing her
work and that Paul felt the same way. No wonder the poor girl
was scared of losing her job and stopped talking. Every move
she made she was being told I wanted to fire her. I was actual-
ly encouraging her positive energy. She must have been so
confused. This has been going on since December!
There was also an instant message between Rubio and Ham-
ilton dated December 29, 2010, in which Hamilton, referring to
Aparicio, states: “Some of the stuff she did before didn’t get
done correctly so she needs to really learn what she has already
been taught and not just do stuff to get it done.” Hamilton was
questioned by counsel for the General Counsel about this
statement and testified, “That’s not saying that I had concerns
about her job performance . . . everyone makes mistakes.”
What she was trying to convey to Rubio in this IM was that
Rubio was asking her to perform work that was outside the
scope of her job: “She didn’t do it correctly because it wasn’t
her job.” Asked if Aparicio performed all her work correctly,
she testified, “I don’t think that Ms. Aparicio did everything
perfectly, nor do I expect that from my staff.” Hamilton also
testified that she had no “input in the decision” to fire Rubio,
and only learned about it a few hours before it took place.
Manuszak testified that there were several reasons why Rubio
was discharged. One was the “egregious” harassment of Apa-
ricio, by trying to intimidate her to quit, by lying to her by tell-
ing her that she wasn’t meeting the company’s expectations.
The other reason was “being manipulative and vindictive “to
Hamilton by trying to catch her doing something wrong.” The
“vindictive” nature of her actions toward Aparicio and Hamil-
ton constituted gross misconduct. Rubio testified that Aparicio
had a lot of problems keeping up with the work in the depart-
ment and would ask her the same questions repeatedly. In ad-
dition, Hamilton berated her for recommending Aparicio for the
job and said that she should have known that she would have
“issues” with the work. She testified further that she did not
recall telling Aparicio that Hamilton was looking for a way to
get her fired, and that she did not encourage her to look for jobs
elsewhere. Carrington testified that he spent about a week and
some followup time training Aparicio, which was more time
than usual to train a new employee. He felt that her perfor-
mance seemed to be lacking compared to other past and present
employees in the department and in January and February he
told Hamilton that Aparicio was making mistakes, that she
would repeatedly ask the same questions, and that because her
work was below par the department was behind in its work.
Carrington became aware that Rubio was discharged on
March 4 when he saw her walking away from her desk toward
the building exit, and shortly thereafter, Bixby called him into
his office. Carrington testified that Bixby said that Rubio had
been discharged and that his “name had come up as being con-
nected with hers.” Bixby told me that he had played a signifi-
cant role in his being reinstated after his layoff in 2009 and
said, “. . . that I could really have a future with the company if I
stopped talking to her and tried to move on and learn how to
work with Merissa.” He also told Carrington that he could
“come in with a clean slate on Monday.” Bixby testified that
after Rubio was discharged on March 4, he met with employees
on Hamilton’s team, including Carrington and Aparicio. He
told Carrington that his name was on the recent instant message
between Rubio and Aparicio and that “. . . he was sometimes
mentioned in the same context as Elba’s disruption,” referring
to the IM between Rubio and Aparicio. Bixby also testified that
he initially told him that Rubio had been discharged and that he
(Carrington) had done very good work for the company and he
had taken a personal interest in him including rehiring him after
he was laid off as a result of a reduction in force, and that he
handled that layoff in a professional manner. Since then he had
received positive reports about his performance, “And I told
him that I was going to give him a little bit of advice, and it was
free advice.” He told him, “I can’t tell you what to do inside of
work, outside of work, how to spend your time. But when
you’re at work you have an opportunity to get involved in all
the positive things that we do or you can go in a different path,
and that’s up to you. My advice to you is Monday, as far as I’m
concerned, this is behind us. We’ll start with a fresh clean slate.
And there are no implications around Rubio’s termination.”
Carrington testified that after Rubio’s discharge, he and Ru-
bio discussed his obtaining his work computer and accessing
company records and forwarding these emails to Rubio and to
his personal email account. Rubio testified that she asked him
if he felt comfortable transferring the emails, and he said that
he did. He testified that their purpose was: “To highlight . . . the
complaint she had made and the discrimination she felt she had
endured, and to show . . . a timeline of the events.” He was
looking to transfer emails from Hamilton to Rubio about con-
verting her to Christianity, emails to show retaliation for her
complaints, such as emails about increased workload or in-
FOOD SERVICES OF AMERICA, INC. 1025
creased work pressure, as well as emails showing favorable
treatment of Aparicio. In addition, he felt that the forwarded
emails might be needed to protect himself. He was concerned
about his job security after his March 4 discussion with Bixby
about his connection to Rubio and he thought that emails prais-
ing his work performance would be helpful to him in case his
job status was affected. Carrington and Rubio went to the Re-
spondent’s facility at about 7 a.m., Saturday, March 5, not a
regular workday for Carrington. He swiped his security card
provided by the Respondent in order to gain access to the build-
ing, went into his office, took his computer home, and trans-
ferred the emails to Rubio and to his personal email account.
He testified that he previewed each of the emails that he trans-
ferred on March 5 and 6 and that as far as he knows, all of the
emails that he forwarded on those days were emails that Rubio
had already received. He did not believe that forwarding these
emails would be a problem until Monday, March 7, when he
was discharged for sending these emails. On cross examina-
tion, Carrington testified that in order to gain access to the Re-
spondent’s website, he first had to log in to his computer using
his work password, and that some of these emails contained
vendor names, customer names, manufactures codes, brand
names, prices charged the Respondent by its vendors, rebates,
and the names, addresses and other contact information for
employees of the Respondent’s vendors. The number of emails
that he forwarded exceeded 300.
Guy Babbitt, who is employed by the Respondent as chief
solutions architect, testified that in early March, he became
aware of some “unusual activity” taking place; Carrington had
forwarded in excess of 300 emails to Rubio, as well as to his
personal email account. In looking at the subject lines of the
emails, he saw a number that were “questionable,” among them
compensation information, bonus information and other sub-
jects “. . . which I knew instinctively was definitely confidential
information. I wasn’t sure why it would be leaving the compa-
ny.” He reported his findings to Manuszak and sent him an
Excel spread sheet listing all the emails that were sent by Car-
rington. When asked how this transmission compared with
others that he has seen during his employment with the Re-
spondent, he testified: “I have never seen anything like this.”
Babbitt also testified that the Respondent has confidentiality
agreements with some of its vendors and some of its customers,
and there is information available on the Respondent’s comput-
er system that vendors and customers would consider trade
secret or proprietary information. He was asked, based upon
his review of the information that Carrington sent out on March
5 and 6, was there any such information in that material. He
answered: “Without a doubt.”
Bixby testified that he reviewed a large number of the emails
that Carrington transferred on March 5 and 6; they included
costing information, item information and specifications, a
listing of the Respondent’s suppliers (vendors), and customers,
as well as the volume and the products purchased from certain
vendors, and the products sold to customers together with the
prices charged for these products. All of these subjects are
confidential and proprietary for the Respondent, and if any of it
was obtained by a competitor of the Respondent, it could result
in a substantial loss of business. He looked at some of the
emails and opened and reviewed the complete attachments of
from 10 to 50 of them. His review of these emails revealed
information which might have violated the Respondent’s confi-
dentiality agreements with some of its vendors and customers.
After seeing this list of emails, and reviewing some of them, he
met with Manuszak and Ernie Snyder and decided that Carring-
ton had to be discharged. The reason:
To me, it was just very simple. It was a clear and egregious
exportation of an absolutely unprecedented volume of propri-
etary and sensitive trade secrets to a terminated employee and
also to his home email address. I could not fathom why [sic]
possible business reason could justify such an act…but the
other was, what was he doing that day? Was he continuing
that same process and exporting thousands more email? I had
no idea, so that crossed my mind, yes.
Hamilton testified that she reviewed all of the emails that
Carrington transmitted on March 5 and 6, and estimates that 80
to 90 percent of them contained confidential and proprietary
information, such as customer and vendor names, prices and
product specifications; however she did not participate in the
decision to discharge Carrington and only learned of it after he
had been fired. Manuszak testified that when he was fully in-
formed of the emails that Carrington transmitted on March 5
and 6, he saw just from the subject line of the emails, that they
included information about their suppliers, customers, and
products, and it was “the most egregious violation of a confi-
dentiality agreement that I’ve seen in twenty years.” Because
of that, he felt that there was no need to meet with, and speak
to, Carrington before terminating him. He also testified that in
his 5 years of employment with the Respondent, he knew of
only one other incident where an employee transmitted compa-
ny proprietary material outside the company. That employee
was Mark Lambert, who was discharged when it was discov-
ered that he sent confidential information, that Respondent
considered proprietary, to a former employee.
As stated, supra, at the close of his case, counsel for the
General Counsel amended the complaint to add two allegations:
that the Respondent, by Manuszak, promulgated an overly
broad rule prohibiting employees from giving personal refer-
ences, and that the Respondent maintained an overly broad rule
prohibiting employees from disclosing personal telephone
numbers. As to the former allegation, on March 7, Rubio sent
an email to ten individuals stating:
It was a pleasure working with you over the past 3 years. I
was laid off last Friday for blowing the whistle on manager
abuse in January, no further reasoning was provided. I would
like to request personal references from you, as I begin my
job search. If you do not feel you can provide a recommenda-
tion, I understand. Thank you.
One of the individuals that this was sent to, forwarded it to
Sherry Donald, who had been Rubio’s supervisor at Gampac,
stating only “FYI”, and she forwarded it to Manuszak, stating,
“Thought you should know this is going around to our associ-
ates.” Manuszak then forwarded it to Babbitt, asking: “Can we
block incoming emails from Elba’s personal email address to
any SGA associate?” Babbitt responded: “Future emails will
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
now be blocked,” and Manuszak responded, “Thanks! I’d also
like to get copies of all correspondence sent from and sent to
Elba’s personal email address the last 90 days.” Rubio testified
that two of the recipients of her email, Hilda Phillips and Robin
Cook, and possibly a third, Rich Clesiak, may have been super-
visors; the others were rank-and-file employees. Three of the
10 individuals responded to Rubio that they would be happy to
be a personal reference for her; Manuszak testified that none of
them were disciplined for their response. Babbitt testified that
Manuszak never asked him to check the incoming or outgoing
emails from any of the 10 individuals named in Rubio’s email;
they were only looking for inbound emails from Rubio.
Manuszak testified that the Respondent has a policy forbid-
ding only supervisors and managerial employees from giving
references to former employees, although it is not contained in
the employees’ handbook; it is covered in a training session. In
the affidavit that he gave to the Board, on this subject he stated:
“The employer has a policy that any references go through the
Employer’s associate services department [generally referred to
as Human Resources] and the associate services department
would confirm only the dates of employment to anyone who
called to inquire about a former employee of the Employer.”
Manuszak, who has approximately 20 years experience in hu-
man resources, testified that a rule such as this prohibiting su-
pervisory employees from giving references for former em-
ployees, on their own, is “extremely common” because infor-
mation given out by company representatives can be considered
libelous or slanderous. However, nonsupervisory employees
are not considered agents of the employer for these purposes.
When he received the email that Donald forwarded to him on
March 7, he wasn’t totally familiar with the duties performed
by all ten recipients of the Rubio’s email, but he knew that one
of them, Cook, was a supervisory employee. He did not speak
to Cook at that time about violating the Respondent rule, be-
cause, “I had bigger matters to attend to on March 7.” In re-
gards to the allegation that the Respondent has a rule prohibit-
ing employees from disclosing employees’ personal telephone
numbers, he testified, “No, we don’t have a policy regarding
disclosure of personal cell phone numbers.”
The initial allegation involves Bixby’s discussion with Car-
rington on March 4, after Rubio was fired. It is alleged that by
this conversation the Respondent violated Section 8(a)(1) of the
Act, by interrogating Carrington about his concerted activities,
orally promulgated an overly broad and discriminatory rule
prohibiting its employees from talking to other employees,
threatened him with unspecified reprisals if he engaged in con-
certed activities, and created the impression among its employ-
ees that their concerted activities were under surveillance by the
Respondent. Carrington testified that after Bixby told him that
Rubio had been discharged and that he (Bixby) played a signif-
icant role in his reinstatement after his layoff in 2009, he said
that Carrington could have a future with the company if he
stopped talking to Rubio and try to move on and learn how to
work with Hamilton, and that he would come in with a “clean
slate” on Monday. Bixby testified that he told Carrington that
his name was included in Rubio’s recent instant messages to
Aparicio and that he was mentioned in the “same context as
Elba’s disruption.” He complimented him on his work and
offered him “a little bit of . . . free advice.” He said, “I can’t
tell you what to do inside of work, outside of work . . . But,
when you’re at work, you have an opportunity to get involved
in all the positive things that we do or you can go in a different
path, and that’s up to you. My advice to you is Monday, as far
as I’m concerned, this is behind us. We’ll start with a fresh
clean slate. And there are no implications around Rubio’s ter-
mination.” This is a difficult credibility determination because
neither Carrington nor Bixby clearly lacked credibility. Alt-
hough I found Carrington to be somewhat evasive in his testi-
mony in other areas, I found Bixby’s testimony about this con-
versation unconvincing. It sounded more like something that
was prepared for trial rather than a spontaneous discussion with
Carrington about his relationship with Rubio. I therefore credit
Carrington’s version of this conversation.
As Bixby did all the talking, and he never questioned Car-
rington about his concerted activities, or those of other employ-
ees including Rubio, I recommend that the allegation that
Bixby interrogated Carrington (Par. 4(g)(1) be dismissed. As
there is also no evidence to support the allegation that Bixby, in
this conversation, created an impression among its employees
(actually, in this situation, Carrington) that their concerted ac-
tivities were under surveillance by the Respondent, I also rec-
ommend that this allegation (Par. 4(g)(4)) be dismissed as well.
The remaining two allegations, paragraphs 4(g)(2) and (3), are
more difficult. It could be argued that Bixby’s statement that
Carrington could really have a future with the company if he
stopped talking to Rubio and try to move on and learn how to
work with Hamilton, could be a discriminatory rule prohibiting
employees from talking to other employees, as well as an im-
plied threat to Carrington if he engaged in concerted activities.
On the other hand, it could be argued that Rubio had already
been discharged and was no longer an employee due to her
harassment of Aparicio, as set forth in the instant message re-
ferred to above, as well as her attempt to “bait” Hamilton to
make a mistake, and that Carrington, to some degree, partici-
pated in the plans set forth in this instant message, so Bixby’s
statement to him was not a threat or an unlawful prohibition,
but was meant as a helpful suggestion on how to maintain his
excellent work performance. Communications with a dis-
charged employee can, under certain circumstances, constitute
concerted activities. In Buck Brown Contracting Co., 283
NLRB 488, 489 (1987), employee Kelly had been fired by the
employer and fellow employee Bridges spoke to the employer
and asked if he could be rehired. Bridges was fired and the
Board found that Bridges’ attempt to assist Kelly with procur-
ing employment with the employer was protected concerted
activity. The instant matter is distinguishable. There is no
evidence that Carrington and Rubio were at that time preparing
to take any lawful group action against the Respondent, nor did
Bixby’s statement directly address any group action. Rather, I
find that the words that Bixby used were meant to convince
Carrington not to repeat the unprotected conduct that they en-
gaged in with the instant message to Aparicio, and I therefore
recommend that this allegation, and paragraph 4(g) of the com-
plaint be dismissed in its entirety.
Paragraph 4(c) of the complaint alleges that since about Feb-
ruary 22 the Respondent has maintained an overly broad and
FOOD SERVICES OF AMERICA, INC. 1027
discriminatory rule prohibiting employees from disclosing em-
ployee cell phone numbers although, at the hearing, counsel for
the General Counsel stated that this amendment referred to
disclosing “personal telephone numbers.” Manuszak testified
that the Respondent does not have a policy regarding the dis-
closure of personal cell phone numbers. As there was no other
evidence supporting this allegation, I recommend that it be
dismissed.
Paragraph 4(h) alleges that on or about March 7 the Re-
spondent, by Manuszak, promulgated an overly broad and dis-
criminatory rule prohibiting employees from providing person-
al references to other employees. The sole support for this
allegation is the emails that were sent by Rubio on March 7 to
10 individuals employed either by the Respondent or another
subsidiary of Service Group of America, Inc. Either one or two
of these ten individuals was a supervisor; the rest were rank and
file employees. The email stated that she was “laid off” on
March 4, and “I would like to request personal references from
you, as I begin my job search.” This email was forwarded to
Donald, who forwarded it to Manuszak stating: “Thought you
should know this is going around to our associates” and
Manuszak forwarded it to Babbitt, asking: “Can we block in-
coming mails from Elba’s personal email address to SGA As-
sociates?” Six minutes later Babbitt responded: “Future emails
will now be blocked.” Three of the 10 individuals responded to
Rubio that they would be happy to be a personal reference for
her and these employees were not disciplined. Manuszak’s
uncontradicted testimony establishes that Respondent did not
have a policy forbidding employees from providing references
to other employees; only supervisors were prohibited from
giving references, and Manuszak’s explanation for the rule was
certainly a reasonable one. The only evidence supporting a rule
prohibiting employees from giving personal references is the
fact that the Respondent blocked her incoming emails after it
became aware of her March 7 emails. However, that could also
be explained by the fact that she had been fired, that Carrington
had transferred over 300 emails to her, and they could see no
valid reason for her to communicate with the employees. More
importantly, there was no testimony that any employee was
aware of any such restriction, and none of the employees who
agreed to give a reference to Rubio were disciplined. I there-
fore recommend that this allegation (par. 4(h)) be dismissed.
The final allegations are that the discharges of Rubio on
March 4, and Carrington on March 7 violate Section 8(a)(1) of
the Act. The complaint alleges that they were discharged be-
cause they engaged in, or because the Respondent believed that
they engaged in, protected concerted activities by discussing
with each other and complaining to the Respondent about Re-
spondent’s national origin and religious discrimination against
its employees, favoritism of certain employees, insufficient
training of employees and by sending and forwarding emails to
each other concerning the wages, hours, and working condi-
tions of the Respondent’s employees.2 In regards to credibility,

2 Because I found that these allegations are clearly without merit,
there are a number of issues that need not be discussed here: whether
Hamilton improperly revealed the results of Ambruster’s drug test to
Rubio and Carrington; whether Rubio went into the Respondent’s facil-
between Aparicio, Carrington, Rubio, and Hamilton, I found
Aparicio clearly the most credible. Although she was still em-
ployed by the Respondent, and had been harassed at work by
Rubio, it appeared to me that she was attempting to testify in an
open and truthful manner. In addition, her testimony was sup-
ported by the February instant message. On the other hand, I
found Rubio to be the least credible of the group whose testi-
mony was often evasive on cross examination. Hamilton and
Carrington were, at times, evasive in their testimony, but, at
times were also fairly credible. Under Wright Line, 251 NLRB
1083, 1089 (1980), in Section 8(a)(3) cases or violations of
Section 8(a)(1) turning on employer motivation, the General
Counsel must first make a prima facie showing sufficient to
support the inference that protected conduct was a “motivating
factor” in the employer’s decision. If that is established, the
burden shifts to the employer to demonstrate that the same
action would have been taken even in the absence of the pro-
tected conduct. I find that counsel for the General Counsel has
not satisfied his initial burden here. The only credible evidence
concerning possible concerted activities here is Rubio’s com-
plaint to the Respondent about Hamilton’s inappropriate No-
vember email regarding their disparate religious beliefs. One
can certainly understand Rubio’s discomfort upon receiving
this email, but the undisputed evidence establishes that Hamil-
ton was spoken to about it shortly after Rubio reported it, and
was told that it was not appropriate either at work or outside of
work to communicate with employees in that manner, and no
similar emails followed. In addition, there is no credible evi-
dence that the Respondent harbored animus toward Rubio as a
result of her complaint about the religious email and there is no
evidence of any connection between the complaint that she
made and her discharge 2 months later. Rather, the evidence
establishes that the February 25 instant message between Rubio
and Aparicio resulted in her discharge a week later. I therefore
recommend that this allegation be dismissed.
The final allegation relates to Carrington’s discharge on
Monday, March 7. The complaint alleges that he was fired
because he and Rubio engaged in protected concerted activities,
and because he violated Respondent’s confidentiality and non-
disclosure Rules. Carrington and Rubio discussed this transfer
of emails after Rubio was fired and he told her that he felt com-
fortable doing so. He testified that he did it to “highlight” Ru-
bio’s complaint about the discrimination that she had endured
and to show “a timeline of the events,” and that he attempted to
transfer emails regarding Hamilton’s attempt to convert her to
Christianity, as well as emails relating to increased work pres-
sure or favoritism toward Aparicio. In addition, after his March
4 conversation with Bixby, he was concerned about his job
security and attempted to transfer emails that praised his work
performance. If this was his true purpose, he certainly accom-
plished it in the wrong way. Since he obtained his computer
early Saturday morning, he probably had 2 days to collect the

ity on March 5 with Carrington; whether Rubio got mad and slammed a
chair and a keyboard at work, as testified to by Bixby; whether Carring-
ton “signed” a confidentiality agreement for the Respondent electroni-
cally; and whether Carrington complied with the Respondent’s subpoe-
na to provide all the the emails that he sent on March 5 and 6; he didn’t.
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
relevant and appropriate emails before the Respondent became
aware of it and, possibly, cut off his email access. If he had
done so, and had only forwarded emails relating to Rubio’s and
his work performance and work-related issues, counsel for the
General Counsel could then reasonably argue that he was en-
gaged in protected concerted activities. However, instead of
accessing and copying appropriate emails relating to their work
and their complaints, he indiscriminately copied emails related
to the operation of the company’s business, having no relation
to their terms and conditions of employment. This accessed
information included the names of vendors and customers,
prices charged by its vendors, the products sold to its customers
together with the prices for these products, the manufactures
codes and brand names, as well as other information. By what-
ever name, whether proprietary or confidential, this is infor-
mation that any company would not want out of its possession.
More importantly, in this situation, accessing this information
does not constitute protected concerted activities. I therefore
find that counsel for the General Counsel has not sustained his
initial burden under Wright Line, supra, and recommend that
this allegation be dismissed.
CONCLUSIONS OF LAW
1. The Respondent has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The provisions relating to compensation and confidential-
ity contained in the Respondent’s handbook and the restriction
on discussing payroll or employee information about other
employees, as contained in Respondent’s confidentiality and
nondisclosure agreement, could chill employees in the exercise
of their Section 7 rights, and therefore violate Section 8(1)(1) of
the Act.
3. The Respondent did not further violate the Act as alleged
in the amended complaint.
THE REMEDY
Having found that the Compensation provision contained in
its employee handbook, and the restriction on discussing pay-
roll or employee information regarding other employees violate
the Act, I recommend that the Respondent be ordered to rescind
these provisions and to notify all of its employees electronically
that these provisions has been rescinded from the employee
handbook and the confidentiality and nondisclosure agreement.
The Respondent is also ordered to post the Board notice at the
facility involved here.
[Recommended order omitted from publication.]