GREYHOUND LINES, INC.

National Labor Relations Board - Board Decisions

May 6, 2019

367 NLRB No. 123 (N.L.R.B. 2019)

367 NLRB No. 123
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Greyhound Lines, Inc. and Louis Little. Case 08–CA–
181769
May 6, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On July 21, 2017, Administrative Law Judge Thomas
M. Randazzo issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the Gen-
eral Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,2 and conclusions3 only to the
extent consistent with this Decision and Order and to
adopt the recommended Order as modified and set forth in
full below.4
The main issue presented in this case is whether the Re-
spondent violated Section 8(a)(3) and (1) of the National
Labor Relations Act (the Act) when it discharged em-
ployee and chief union steward Louis Little on July 13,
2016,5 because of his conduct during a June 24 confronta-
tion with Manager Jon Heben. As more fully detailed be-
low, this confrontation began when Little approached
Heben, together with employee Danielle Young, to dis-
cuss Young’s complaints about Heben’s alleged mistreat-
ment of her. This discussion quickly escalated, with Little

1 Member Emanuel is recused and took no part in the consideration
of this case.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
No exceptions were filed to the judge’s finding that this case is not
appropriate for deferral to the grievance-arbitration procedure of the col-
lective-bargaining agreement between the Respondent and the Amalga-
mated Transit Union Local 1700 (the Union).
The Respondent filed only bare exceptions to the judge’s findings that
it violated Sec. 8(a)(1) by maintaining “Hostility,” “Personal Con-
duct/Courtesy,” and “Company Information” work rules. Because the
Respondent has not presented any argument in support of these excep-
tions, we find in accordance with Sec. 102.46(a)(1)(ii) of the Board’s
Rules and Regulations that these exceptions should be disregarded. See,
e.g., Natural Life, Inc. d/b/a Heart & Weight Institute, 366 NLRB No.
53, slip op. at 1 fn. 3 (2018); Holsum de Puerto Rico, Inc., 344 NLRB
694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006).
using profanities and engaging in aggressive physical con-
duct, including in a location visible to employees and the
Respondent’s customers.
The judge found that Little was engaged in protected
union activity during the confrontation. Applying the fac-
tors set forth in Atlantic Steel Co., 245 NLRB 814 (1979),
the judge then analyzed whether Little’s misconduct dur-
ing the confrontation caused him to lose the protection of
the Act. Under Atlantic Steel, the Board considers four
factors: (1) the location of the discussion; (2) the subject
matter of the discussion; (3) the nature of the employee’s
outburst; and (4) whether the outburst was, in any way,
provoked by the Respondent’s unfair labor practices. Id.
at 816. The judge found that all four factors favored Lit-
tle’s continued protection under the Act. Accordingly, the
judge concluded that the Respondent unlawfully dis-
charged Little for engaging in union activity.
We agree with the judge’s finding that Little engaged in
union activity during his confrontation with Heben. We
disagree, however, with some aspects of the judge’s At-
lantic Steel analysis. Contrary to the judge, we find that
the nature of Little’s conduct and the location of the con-
frontation do not weigh in favor of finding that Little re-
tained the protection of the Act. As explained below, we
find these factors are neutral. We agree with the judge,
however, that the remaining factors—the subject matter of
the confrontation and the extent to which Little’s conduct
was provoked by the Respondent—weigh in favor of con-
tinued protection, and we also agree with the judge’s over-
all conclusion that Little retained the protection of the Act
under Atlantic Steel. Accordingly, we affirm the judge’s
finding that the Respondent violated Section 8(a)(3) when
it discharged Little for engaging in union activity.6
The General Counsel does not except to the judge’s denial of his re-
quest that the remedy include consequential damages as a result of the
Respondent’s unfair labor practices.
3 We have amended the judge’s conclusions of law consistent with
our findings herein.
4 We shall substitute a new notice to conform to the Order as modi-
fied.
5 All subsequent dates are in 2016.
6 The judge found Little’s discharge unlawful under two additional
theories as well. First, he found that Little also engaged in protected
concerted activity during the confrontation with Heben and that the Re-
spondent violated the Act by discharging Little because of that protected
concerted activity. Second, the judge found that Little’s discharge was
independently unlawful, under Sec. 8(a)(1), because it was pursuant to
the Respondent’s unlawfully overbroad Hostility and Personal Con-
duct/Courtesy rules. We find it unnecessary to pass on these additional
theories of violation, and we do not rely on the judge’s analysis of them,
because they would not materially affect the remedy. We note, however,
that in support of his finding that Little’s conduct was concerted, the
judge cited Anco Insulations, Inc., 247 NLRB 612 (1980), and Alleluia
Cushion Co., 221 NLRB 999 (1975). We do not rely on the judge’s ci-
tation of these cases. We observe that Anco Insulations cited and relied
on Alleluia Cushion as authority for the standard for determining whether
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I. FACTS
The Respondent provides transportation services
throughout the United States. It employed Louis Little as
a bus driver at its Cleveland, Ohio facility, where the Un-
ion represents a unit of bus drivers and maintenance em-
ployees. Prior to his discharge in 2016, Little had been
employed by the Respondent for 25 years and had served
as a union steward for 20 of those years. During the 3
years prior to his discharge, he served as chief union stew-
ard. In these roles, he investigated and prepared griev-
ances on behalf of unit employees and met with the Re-
spondent’s officials to discuss them. In May and June,
several unit employees, including bus driver Danielle
Young, spoke to Little in his capacity as chief steward
about Manager Jon Heben, who is responsible for over-
seeing bus drivers and other personnel at the Cleveland
facility. Young complained that Heben spoke to her with
“attitude, smartness, [and was] cocky,” usually in the pres-
ence of bus passengers.
On June 24, the Respondent called Young to cover a bus
route scheduled to leave at 2 p.m. Young arrived at the
facility at 1:30 p.m., but her departure was delayed past
two o’clock by several circumstances. Apparently due to
issues with the Respondent’s computer system, Young
was unable to determine which bus she was assigned to
drive. She also looked into alternative routes for her trip
because the highway lanes typically used for her route
were closed due to an accident. After a clerk assigned
Young a bus, Young spoke with Heben about directions
for an alternative route. Young felt that Heben was disre-
spectful during this conversation by telling her to be quiet
and to listen to him and by waving his finger in her face.
At 2:35 p.m., Little arrived at the facility. By that time,
Young had loaded passengers on her bus, but she had yet
to depart. Because he had observed the highway closure,
Little approached Young to discuss an alternative route.
Young complained to Little that Heben had again been
disrespectful to her that day, stating that Heben had waved
his finger and yelled at her after she asked him for direc-
tions. Little decided that they should immediately discuss
Young’s complaint with Heben.
The two approached Heben in an enclosed hallway con-
necting the bus terminal and platform. There were no cus-
tomers or other employees present in the hallway. Little
told Heben that he wanted to talk to him about how he had
spoken to Young. Heben denied that he had done anything
wrong, reminded the two that Young’s departure was de-
layed, and instructed Young to begin her route. Heben

activity is concerted, and Alleluia Cushion and its progeny (necessarily
including Anco Insulations) were overruled in Meyers Industries, 268
NLRB 493 (1984) (subsequent history omitted).
yelled and pointed his finger at Little and Young. Little
explained to Heben that this very conduct was the reason
for their discussion, but Heben continued to yell and point
his finger. Little responded that had the Respondent not
failed to assign Young a “damn bus” in its computer sys-
tem and had the clerk done “what she was supposed to
damn do,” Young could have “gotten her shit and left” on
time. Heben instructed Little not to swear. Little told
Heben that because of Heben’s behavior, he did not feel
that Heben was acting like a supervisor. Heben moved
closer to Little and pointed his finger in Little’s face. Lit-
tle told Heben that the delay was Greyhound’s “fucking
fault.” After Heben again instructed Little not to swear,
Little said “fuck you.” Little and Young ended the con-
frontation, which Heben testified lasted “a minute or two
possibly,” by exiting the hallway and walking onto the
platform near Young’s bus. The record does not reveal
how many passengers were on the bus. The bus door and
windows were shut.
Heben followed Little and Young to the platform. He
yelled that Young needed to get on her bus and leave. He
walked up to Little, yelled at him to stop swearing, and
told Little that he could not say whatever he wanted. Little
turned to face Heben and said, “Just like you’re putting
your finger in my face, I can put my finger in your face.”
Heben and Little were face to face. Little repeatedly
swung his hand across his body, pointing his index finger,
and told Heben that he could “say whatever the fuck I want
to say.” The judge found that Little’s gestures were ag-
gressive, but not threatening. Heben asked Little if he was
going to hit him, and Little replied that he was not. Little
and Young walked away and the confrontation ended. A
video recording that captured the platform confrontation
shows that it lasted about 30 seconds.
At the hearing and in its exceptions before the Board,
the Respondent asserts that Little punched Heben in the
abdomen during the platform confrontation. The Re-
spondent, however, failed to provide any evidence to con-
tradict the judge’s finding—based on his credibility deter-
minations and scrutiny of the video recording—that Lit-
tle’s hand “never made contact with Heben.”7 Indeed, the
Respondent does not dispute the judge’s finding that,
hours after the confrontation, Heben fabricated evidence
of having been punched by rubbing his knuckles against
his stomach to cause redness and taking a photograph of
the fabricated injury.
The Respondent discharged Little on July 13. In the
discharge letter, the Respondent explained that Little had
7 Little and Young testified that Little did not make physical contact
with Heben, and the judge credited their testimony over Heben’s contrary
testimony. We have reviewed the video recording and, like the judge,
we see no indication that Little punched Heben in the stomach.
GREYHOUND LINES, INC. 3
further delayed Young’s bus route by confronting Heben
and cited his “unrestrained use of profanity,” “uncon-
trolled behavior” leading to a “blow to Heben’s stomach,”
and “gross insubordination.”
II. ANALYSIS
We agree with the judge that Little engaged in union
activity during his June 24 confrontation with Heben. Ear-
lier that month Young complained to Little, in his capacity
as chief steward, that Heben had mistreated her. On June
24, Young complained to Little that Heben had again mis-
treated her. Plainly, this second complaint was a continu-
ation of Young’s earlier-expressed concerns and was ad-
dressed to Little in his role as chief steward. Little then
approached Heben to discuss Young’s complaint. He ex-
plained that he wanted to discuss how Heben had spoken
to Young that day. After Heben responded by yelling and
pointing his finger at Little and Young, Little said that
those very actions were the reason for their discussion.
Although Little did not explicitly announce as much, it
was apparent and we find that Little was acting in his rep-
resentative capacity as chief union steward on Young’s
behalf.8
Having affirmed the judge’s finding that Little engaged
in union activity during his confrontation with Heben, we
now apply the four-factor Atlantic Steel test to determine
whether Little retained or lost the protection of the Act in
the course of that activity.
We find that the first Atlantic Steel factor, the location
of Little’s conduct, neither favors nor disfavors protection.
The Respondent argues that Little lost the Act’s protection
because the confrontation on the bus platform took place
in the presence of passengers and employees.9 Although
there is no affirmative evidence that any passengers on
Young’s bus witnessed or heard the confrontation, the bus
was loaded and parked at the platform, and it is certainly
possible that at least some passengers saw and/or over-
heard it. On the other hand, the bus door and windows
were closed, the record does not reveal how many passen-
gers were on the bus, and the Respondent does not dispute
the judge’s finding that no passengers complained about
the confrontation. Moreover, this part of the confrontation
only lasted about 30 seconds. We find that the Respond-
ent has not established that Little’s conduct impacted pas-
sengers or the Respondent’s ability to service them. See
Goya Foods of Florida, 347 NLRB 1118, 1134 (2006)

8 We reject the Respondent’s contention that Little was not engaged
in union activity because his confrontation with Heben was not a formal
grievance meeting or a pregrievance conversation and did not result in
the Union filing a grievance. See Gross Electric, Inc., 366 NLRB No.
81, slip op. at 2 (2018) (stating that a union official “is not required to
file a grievance in order to be engaged in union activity or to be protected
from retaliation”).
(less than a minute of loud shouting inside a supermarket
did not warrant loss of protection where there was no ap-
parent disruption to customers), enfd. 525 F.3d 1117 (11th
Cir. 2008).
Turning to employee exposure, three employees re-
ported overhearing and witnessing the confrontation. The
Board has found that “an employee’s outburst against a
supervisor in a place where other employees could hear it
would tend to affect workplace discipline by undermining
the authority of the supervisor.” Kiewit Power Construc-
tors Co., 355 NLRB 708, 709 (2010), enfd. 652 F.3d 22
(D.C. Cir. 2011). However, employees Melvin Flowers
and Marlon Jackson reported only hearing yelling and see-
ing Little and Heben on the platform; neither reported
hearing profanities or seeing Little’s aggressive physical
conduct. Indeed, Jackson reported that the incident simply
left the two of them “standing there scratching our heads
wondering what had happened.” This evidence does not
establish that these employees witnessed a coworker “un-
dermining the authority of the supervisor.” The third em-
ployee, Zephaniah Lawson, reported seeing Little touch
Heben on the shoulder, yell in Heben’s face, and point in
Heben’s personal space. This evidence certainly impli-
cates the concerns articulated by the Board in Kiewit.
Lawson, however, did not report hearing any profanities,
and his assertion that Little touched Heben is contradicted
by the judge’s finding that Little’s hand “never made con-
tact with Heben.”
Finally, and critically, it was Heben—not Little—who
chose to extend the confrontation by following Little and
Young to the bus platform. The Respondent contends that
Heben felt compelled to continue the confrontation be-
cause Little ignored Heben’s instruction in the enclosed
hallway that he not use profanities and because Heben was
concerned about preventing any further delays in Young’s
departure. While this contention has some force, the fact
remains that had Heben walked away as Little had just
done, the confrontation would have ended, and neither
passengers nor employees would have witnessed it. See
Kiewit Power Constructors Co., supra (employer “hardly
in a position to complain that other employees overheard”
two employees’ protest of their disciplinary warnings,
where the employer chose to distribute the warnings “in a
group employee setting in a work area during working
time”); Brunswick Food & Drug, 284 NLRB 663, 664–
9 The Respondent does not dispute that there is no evidence that cus-
tomers or other employees observed or overheard the portion of the con-
frontation that occurred in the enclosed hallway. See Stanford Hotel, 344
NLRB 558, 558 (2005) (where meeting occurred in a basement lunch-
room, no employees were present, and the door was closed to maintain
privacy, location favored protection).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
665 (1987) (where restaurant manager “selected the set-
ting for [a] confrontation” with union organizers, “it [was]
hardly in a position to object that customers were drawn
into it”), enfd. mem. sub nom. NLRB v. Kroger Co., 859
F.2d 927 (11th Cir. 1988).10 In sum, we cannot find that
the location of Little’s conduct favors a conclusion that
Little retained the Act’s protection, but in light of the mit-
igating circumstances discussed above, neither can we
find that it disfavors retaining protection. The “location
of the discussion” factor is neutral in the Atlantic Steel
analysis.11
The second Atlantic Steel factor—the subject matter of
the discussion—strongly favors Little retaining the protec-
tion of the Act. Little clearly acted in his capacity as union
steward when he approached Heben and communicated
Young’s complaints about Heben’s alleged mistreatment
of her.
We do not condone an employee’s use of profanities or
aggressive physical conduct. Nevertheless, for the follow-
ing reasons, we find that the third Atlantic Steel factor—
the nature of Little’s outburst—neither favors nor disfa-
vors a loss of protection.
There is no doubt that Little became confrontational in
the course of advocating for Young. Little admitted using
profanities, and the worst of them were directed at Heben.
See Plaza Auto Center, Inc., 360 NLRB 972, 977 (2014)
(distinguishing profanities used to describe an employer’s
policy with more troubling profanities that insult and tar-
get members of management). Moreover, although Lit-
tle’s conduct was not threatening, and (contrary to the Re-
spondent’s fabricated assertion) he did not strike Heben in
the stomach, Little did gesticulate aggressively in close
proximity to Heben. An employee’s right to engage in
protected activity must be balanced against an employer’s
need to maintain order, discipline, and respect in its work-
place. See Triple Play Sports Bar & Grill, 361 NLRB
308, 311 (2014), affd. sub nom. Three D, LLC v. NLRB,
629 Fed. Appx. 33 (2d Cir. 2015); Plaza Auto Center, 360
NLRB at 978. Accordingly, we would ordinarily find that
the nature of Little’s conduct weighs against protection.
See, e.g., Plaza Auto Center, 360 NLRB at 977 (em-
ployee’s repeated obscene and insulting profanities during
a face-to-face meeting with a supervisor weighed against
protection).

10 See also Kiewit Power Constructors Co. v. NLRB, 652 F.3d 22, 26–
27 (D.C. Cir. 2011) (citing with approval Board’s reasoning that “while
quarrels with management are more likely to disturb the workplace if
they are made in front of fellow workers, the NLRB will not hold this
against the employee when the company picks a public scene for what is
likely to lead to a quarrel”).
11 The Respondent faults Little for further delaying Young’s depar-
ture. Even assuming Little is to blame for the entirety of the
The judge, however, credited the testimony of employ-
ees and union officials that employees and members of
management alike at the Respondent’s Cleveland facility
commonly used similar profanities and that public and
profane outbursts similar to the confrontation between Lit-
tle and Heben were also commonplace. For example,
Manager Jimmie Lytle testified that he used profanities at
the facility, that employees used profanities in front of bus
passengers, and that he (Lytle) had heated conversations
with union officials during union-management meetings.
Moreover, the judge found that the record was devoid of
evidence that the Respondent had ever disciplined an em-
ployee for using profane language, and Lytle conceded
that prior to Little’s discharge, the Respondent had never
disciplined, suspended, or discharged an employee for us-
ing profanities. The Respondent’s tolerance of conduct
similar to Little’s substantially undercuts its argument that
Little’s conduct was so egregious as to warrant loss of the
Act’s protection. See Traverse City Osteopathic Hospital,
260 NLRB 1061, 1061 (1982) (employee’s “profane out-
burst” was not so egregious as to remove him from the
Act’s protection in part because “the use of profanity by
hospital personnel was not uncommon . . . and had been
tolerated in the past”), enfd. mem. 711 F.2d 1059 (6th Cir.
1983); Corrections Corp. of America, 347 NLRB 632, 636
(2006) (employee’s use of profanity did not result in loss
of protection where profanities were “commonly used . . .
by [employees] and supervisors alike”). Accordingly,
notwithstanding Little’s use of profanities and his aggres-
sive physical conduct, we find that this factor neither fa-
vors nor disfavors his retaining the Act’s protection under
the circumstances presented here.12
Finally, we find that the fourth Atlantic Steel factor—
whether Little was provoked—favors a finding that Little
retained the Act’s protection. Little used profanities in the
enclosed hallway only after Heben began to yell and point
his finger in response to Little’s protected complaint about
Heben’s treatment of Young. See, e.g., Battle’s Transpor-
tation, Inc., 362 NLRB 125, 125 fn. 4, 134 (2015) (“suffi-
cient provocation” of employee outburst where a manager
told an employee to “shut up”). Notably, it was Heben—
not Little—who chose to extend the confrontation by fol-
lowing Little and Young to the bus platform, yelling at
confrontation, the record reveals that it lasted no more than 2-1/2
minutes. We do not believe that this minimal delay meaningfully affects
the analysis under Atlantic Steel.
12 Chairman Ring and Member Kaplan find that Little did not lose the
protection of the Act because the judge credited testimony that the Re-
spondent permitted profanity in the workplace and did not have a record
of disciplining employees for this. Without these findings, they would
have found that Little lost the protection of the Act.
GREYHOUND LINES, INC. 5
Young to start her bus route and walking up to Little to
admonish him for using profanities.13
In sum, Little was profane and aggressive, but Heben
behaved provokingly, and the Respondent had tolerated
such conduct in the past. Little initiated the confrontation
where neither passengers nor other employees were pre-
sent, and the fact that it continued on the bus platform in
view of passengers and employees was partly Heben’s re-
sponsibility. While a few employees and an unknown
number of bus passengers were present for the confronta-
tion, the record does not establish that it had any meaning-
ful impact on the Respondent’s operations. Finally, the
subject matter of the confrontation—Little’s efforts, as
chief union steward, to voice an employee’s workplace
complaints—strongly favors continued protection. Ac-
cordingly, we find that Little did not lose the protection of
the Act, and the Respondent violated Section 8(a)(3) when
it discharged him.14
AMENDED CONCLUSIONS OF LAW
Replace Conclusion of Law 2 in the judge’s decision
with the following paragraph.
“2. The Respondent violated Section 8(a)(3) and (1) of
the Act on July 13, 2016, by discharging employee Louis
Little because of his union activity.”
ORDER
The National Labor Relations Board orders that the Re-
spondent, Greyhound Lines, Inc., Cleveland, Ohio, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from
(a) Maintaining rules or policies that (1) prohibit em-
ployees from making any complaints, criticisms, or sug-
gestions to or in the presence of passengers or the public
or that require employees to make any complaints, criti-
cisms, or suggestions through appropriate internal Com-
pany channels; (2) prohibit conduct that challenges or co-
erces another employee or that requires employees to treat
members of management with respect at all times; and (3)
prohibit employees from divulging anything about the af-
fairs of the company or from permitting access to Com-
pany records or reports by any party outside the Company;
(b) Discharging or otherwise discriminating against
employees because they engage in union activities;

13 As the judge correctly found, the fact that Heben’s conduct did not
constitute an unfair labor practice does not compel the conclusion that
Little’s conduct was either unprovoked or unprotected.
14 In its exceptions brief, the Respondent criticizes the judge’s focus
on whether Little struck Heben and cites the decision of the United States
Court of Appeals for the District of Columbia Circuit in Felix Industries
for the proposition that threats or physical violence need not accompany
obscene comments for such comments to lose the employee who utters
them the protection of the Act. See Felix Industries, Inc. v. NLRB, 251
(c) In any like or related manner interfering with, re-
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, revise
or rescind employee rules or policies that are overbroad,
ambiguous, or otherwise limit employees’ rights under the
National Labor Relations Act insofar as they (1) prohibit
employees from making any complaints, criticisms, or
suggestions to or in the presence of passengers or the pub-
lic, and which require employees to make any complaints,
criticisms, or suggestions through appropriate internal
Company channels (as set forth in Rule 2-1 Hostility); (2)
prohibit conduct that challenges or coerces another em-
ployee and requires employees to treat members of man-
agement with respect at all times (as set forth in Rule 2-3
Personal Conduct/Courtesy); and (3) prohibit employees
from divulging anything about the affairs of the company
or from permitting access to Company records or reports
by any party outside the Company (as set forth in Rule 2-
7 Company Information).
(b) Furnish all current employees with inserts for the
current employee conduct policies that (1) advise employ-
ees that the above-mentioned unlawful policies or rules
have been rescinded, or (2) provide employees with the
language of revised lawful policies or rules on adhesive
backing that will cover the above-mentioned policies; or
(3) publish and distribute to employees policies that do not
contain the above-mentioned unlawful rules or policies, or
which contain or provide the language of lawful rules or
policies.
(c) Within 14 days from the date of this Order, offer
Louis Little full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed.
(d) Make whole Louis Little for any loss of earnings
and other benefits suffered as a result of his unlawful dis-
charge and discrimination against him, including any
search-for-work and interim employment expenses, in the
manner set forth in the remedy section of this decision.
(e) Compensate Louis Little for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
F.3d 1051, 1055 (D.C. Cir. 2001) (reversing the Board and finding that
an employee’s use of profane and denigrating language weighed against
the employee retaining the protection of the Act). We agree that profane
comments standing alone may, in certain circumstances, weigh in favor
of losing the Act’s protection, and as explained above, we acknowledge
the offensiveness of Little’s speech and conduct. Nevertheless, for rea-
sons explained, we find that under the circumstances presented here, the
factor of Little’s conduct is neutral in the Atlantic Steel analysis.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and file with the Regional Director for Region 8, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the back-
pay award to the appropriate calendar years for Louis Lit-
tle.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Louis Little, and within 3 days thereafter, notify said em-
ployee in writing that this has been done and that the dis-
charge will not be used against him in any way.
(g) 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, social
security payment records, timecards, personnel records
and reports, and all other records, including electronic
copies of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(h) Within 14 days after service by the Region, post at
its facility in Cleveland, Ohio, copies of the attached no-
tice marked “Appendix.”15 Copies of the notice, on forms
provided by the Regional Director for Region 8, after be-
ing signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily posted.
In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
If 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 employees and former employees em-
ployed by the Respondent at any time since February 9,
2016.
(i) Within 21 days after service by the Region, file with
the Regional Director for Region 8 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. May 6, 2019

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
_____________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT maintain rules or policies that (1) prohibit
you from making any complaints, criticisms, or sugges-
tions to or in the presence of passengers or the public or
that require you to make any complaints, criticisms, or
suggestions through appropriate internal Company chan-
nels; (2) prohibit conduct that challenges or coerces an-
other employee or that requires you to treat members of
management with respect at all times; and (3) prohibit you
from divulging anything about the affairs of the Company
or from permitting access to Company records or reports
to any party outside the Company.
WE WILL NOT discharge or otherwise discriminate
against you for engaging in union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
GREYHOUND LINES, INC. 7
guaranteed you by Section 7 of the Act, which are listed
above.
WE WILL revise or rescind employee rules or policies
that (1) prohibit you from making any complaints, criti-
cisms, or suggestions to or in the presence of passengers
or the public and that require you to make any complaints,
criticisms, or suggestions through appropriate internal
Company channels (as set forth in Rule 2-1 Hostility); (2)
prohibit conduct that challenges or coerces another em-
ployee and that requires you to treat members of manage-
ment with respect at all times (as set forth in Rule 2-3 Per-
sonal Conduct/Courtesy); and (3) prohibit you from di-
vulging anything about the affairs of the company and
from permitting access to Company records or reports by
any party outside the Company (as set forth in Rule 2-7
Company Information), and WE WILL advise employees in
writing that we have done so and that the unlawful rules
or policies will no longer be enforced.
WE WILL furnish you with inserts for your current em-
ployee Rule Book that advise you that the above-men-
tioned policies have been rescinded or provide you with
language of lawful policies on adhesive backing that will
cover the above-mentioned unlawful policies, or WE WILL
publish and distribute to you revised employee conduct
rules or policies that do not contain the above-mentioned
unlawful rules or that provide the language of lawful pol-
icies or rules.
WE WILL, within 14 days from the date of the Board’s
Order, offer Louis Little full reinstatement to his former
job or, if that job no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
WE WILL make Louis Little whole for any loss of earn-
ings and other benefits resulting from his unlawful dis-
charge, less any net interim earnings, plus interest, and WE
WILL also make Louis Little whole for reasonable search-
for-work and interim employment expenses, plus interest.
WE WILL compensate Louis Little for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 8, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the unlaw-
ful discharge of Louis Little, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done

1 An amended charge was filed by the Charging Party on September
29, 2016.
2 All dates are 2016, unless otherwise indicated.
and that the discharge will not be used against him in any
way.
GREYHOUND LINES, INC
The Board’s decision can be found at
www.nlrb.gov/case/08-CA-181769 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Cheryl Sizemore, Esq., for the General Counsel.
Patrick H. Lewis, Esq. and Jeffrey A. Seidle, Esq., for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
THOMAS M. RANDAZZO, Administrative Law Judge. This case
was tried in Cleveland, Ohio, on March 1–2, 2017. Louis Little,
an Individual (the Charging Party) filed a charge on August 8,
2016,1 and the General Counsel issued a complaint and notice of
hearing in this matter on November 28, 2016.2
The complaint alleges that Greyhound Lines, Inc. (the Re-
spondent) violated Section 8(a)(3) and (1) of the National Labor
Relations Act (the Act) by discharging the Charging Party on
July 13, 2016, because he engaged in union and protected con-
certed activities by participating in a discussion with Respondent
Manager Jon Heben about the manner in which Heben was treat-
ing employees. In addition, the complaint alleges that Respond-
ent violated Section 8(a)(1) of the Act by maintaining policies
and/or work rules pertaining to “Hostility,” “Personal Con-
duct/Courtesy,” and “Company Information,” and by enforcing
the “Hostility” and “Personal Conduct/Courtesy” rules in dis-
charging Little pursuant to those rules.3 The Respondent, in its
answer, denied that it violated the Act as alleged.
3 The General Counsel amended complaint par. 7(F) at trial to add
that Respondent allegedly enforced its “Hostility” rule, in addition to its
“Personal Conduct/Courtesy” rule, in discharging Little. (Tr. 17.)
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On the entire record,4 including my observation of the de-
meanor of the witnesses,5 and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Delaware corporation with an office and
place of business in Cleveland, Ohio, where it is engaged in the
interstate and intrastate transport of passengers and freight. The
Respondent admits, and I so find, that annually in conducting its
business operations described above, it derived gross revenues
in excess of $50,000 for the transportation of passengers from
the State of Ohio directly to points outside the State of Ohio.
It is also admitted, and I so find, that Respondent has been
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and that the Amalgamated Transit Union Lo-
cal 1700 (the Union) has been a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The Respondent provides transportation of passengers and
freight throughout the United States. At the Respondent’s
Cleveland, Ohio facility (the only facility involved herein), the
Union is the exclusive collective-bargaining representative of the
Respondent’s operators (drivers) and maintenance employees.
(Jt. Exh. 1, p. 13.)6 The Respondent and Union have had a long
standing collective-bargaining relationship, which has been em-
bodied in successive collective-bargaining agreements, the most
recent of which is effective from April 1, 2013, to March 31,
2018. (Jt. Exh. 1.)
Louis Little was employed by the Respondent as a driver from
July 14, 1991, until July 13, 2016, when he was discharged.
Over his 25 years of employment with Respondent, he served as
a union steward for 20 years and the chief shop steward for 3
years. As the chief steward, the position he held at the time of
his discharge, Little was responsible for investigating possible
grievances and for preparing and filing grievances for bargaining
unit members. In performing his duties as chief steward, he held
pregrievance and grievance meetings with Respondent’s various
supervisors and managers. While the Cleveland facility has of-
fices for certain managers and a Driver’s Room where drivers
check-in and receive their schedules, the record reflects that the
Union’s meetings with Respondent’s officials were not held in
specifically designated areas. Instead, the record establishes that

4 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “GC Exh.” for General Counsel’s Exhibit; “R. Exh.” for Respond-
ent’s Exhibit; “Jt. Exh.” for Joint Exhibit; “GC Br.” for the General
Counsel’s brief; and “R. Br.” for Respondent’s brief.
The General Counsel filed a motion to correct the transcript on May
3, 2017, which was not opposed by Respondent. In an Order dated May
5, 2017, I granted the motion correcting the record. Therefore, volume
2, p. 579, line 5, which reflected Respondent counsel’s question to wit-
ness Jon Heben as: “Why didn’t you follow him?” was corrected to read:
“Why did you follow him?”
union-management meetings were held in areas throughout the
Cleveland facility, including in conference rooms, the drivers’
room, the offices of Respondent’s managers, and in areas open
to the public, such as on the loading dock or in the bus terminal
area where employees and customers could be present. (Tr. 53–
54; 364–365.)
With regard to the Respondent’s management personnel, Jon
Heben (the manager of customer experience) is responsible for
overseeing drivers and all terminal personnel at the Cleveland
facility. Heben reports to Jimmie Lytle (the area manager of
driver operations and safety), who oversees the day-to-day oper-
ations of the Cleveland facility, and it appears that Lytle reports
to Joseph Hapac (the regional manager, driver operations, and
safety).
2. The Respondent’s employee conduct rules and the use of
profanity at the Cleveland facility
The Respondent maintains employee conduct policies in its
Greyhound Driver’s Rule Book. (Jt. Exh. 2.) Section 2 of the
Rule Book (entitled “Driver Behavior and Image”) contains var-
ious rules, three of which are at issue in this case:
Rule 2-1 Hostility: Drivers may not take hostile or aggressive
actions, whether verbal, physical, by gesture, or otherwise, to-
wards the Company, its employees, patrons, vendors, or agents.
The use of vulgar language or profanity of any type will not be
tolerated.
Any complaints, criticisms or suggestions shall be made
through appropriate internal Company channels and shall not
be made to or in the presence of passengers or the public.
Rule 2-3 Personal Conduct/Courtesy: Drivers are expected
to conduct themselves as professionals. They must be pleasant
and courteous in dealing with passengers, regulatory or en-
forcement authorities, the public, agents and fellow employees.
Vulgar language, profanity or other rude behavior will not be
tolerated.
Drivers are expected to refrain from fighting, “horseplay,” or
any other conduct that may be dangerous to others. Conduct
by drivers that threatens, intimidates, challenges or coerces an-
other employee, a customer, or a member of the public will not
be tolerated.
To avoid an argument, where possible, the dispute shall be re-
ferred to a supervisor to resolve whatever problems exist.
Drivers will treat members of management with respect at all
times.
5 In making my findings regarding the credible evidence, including
the credibility of the witnesses, I considered the testimonial demeanor of
such witnesses, the content of the testimony, and the inherent probabili-
ties based on the record as a whole. In addition, I have carefully consid-
ered the testimony in contradiction to my factual findings, but I have
discredited such testimony.
6 The collective-bargaining unit as set forth in the contract specifi-
cally states that the maintenance employees in the unit are those not oth-
erwise represented by the International Association of Machinists and
Aerospace Workers. (Jt. Exh. 1, p. 13.)
GREYHOUND LINES, INC. 9
Rule 2-7 Company Information: Drivers shall neither di-
vulge anything about the affairs of the Company to nor permit
access to Company records or reports by any party outside the
Company.
Despite the fact that Rules 2.1 and 2.3 both provide that the
use of vulgar language or profanity will not be tolerated by the
Respondent, the undisputed evidence establishes that the use of
profanity and vulgar language was commonplace at the Re-
spondent’s facility, and in particular, in and during union-man-
agement meetings where employee working conditions and pos-
sible grievances were discussed.
Employee Clarissy Rankin testified that employees use curse
words such as “ass,” “damn,” “shit,” and “fuck” at the facility,
and that she has heard Respondent reports clerk Renee Ramsey
specifically say “fuck Greyhound.” (Tr. 134–135; 137–138.)
Little testified that he has used profanity at the Cleveland facility,
particularly on buses, and in the terminal, dock area, drivers’
room, conference room, and the supervisor offices. Some exam-
ples of the profanity he has used consisted of: “shit,” “damn,”
and “bullshit.” (Tr. 147–148.) He testified that employee Renee
Ramsey regularly used profanity at work (such as “fuck”) and
that she has told customers they should “fucking pay attention.”
(Tr. 208.)
Little testified that he has raised his voice with managers and
supervisors in union-management meetings while representing
employees, and has used profanity in front of Heben and Re-
spondent’s manager, Jimmie Lytle. (Tr. 148–149.) Also, accord-
ing to Little’s undisputed testimony, during union-management
meetings where workplace issues were discussed, both union and
management officials have raised their voices, spoke with or ges-
tured with their hands while talking, and have used profanity.
(Tr. 149–153.) Little also testified that former Operations Su-
pervisor Marshay Gibbons has told employees to “get your shit
together” and “stop fucking up.” (Tr. 210–212.)
Little’s testimony was corroborated by Union Official Her-
man Green, who testified that in interactions with management
and supervisory officials, he and other union officials have raised
their voices, cursed, and used profanity. (Tr. 366–367.) Like-
wise, Green testified that during such interactions, management
officials also used profanity and used hand gestures such as
pointing fingers during interactions with union officials. (Tr.
368–371.) Gibbons also corroborated Little’s testimony, stating
that in matters concerning union-management interactions, such
as bargaining or grievance related matters, union officials and
managers (including herself) screamed during meetings and used
profanity with each other. (Tr. 450–468.) According to Gib-
bons, there were confrontations and outbursts throughout the fa-
cility and sometimes passengers were present. (Tr. 466.) Some
of the profanity used consisted of: “bullshit,” “full of shit,”
“that’s a damn lie,” and “are you fucking serious?” (Tr. 452.)
Such testimony establishing that profanity and outbursts were
commonplace at the Cleveland facility was not disputed by the
Respondent. In fact, Lytle acknowledged that drivers have

7 Manigault testified that she also experienced another unpleasant en-
counter with Heben when he yelled at her to get on her bus while she was
in the process of performing a required pretrip bus inspection check, but
cursed and used profanity in front of passengers, have gotten into
physical altercations with passengers, and have had verbal con-
frontations with each other. (Tr. 48–54.) In fact, he admitted that
even he has used profanity at the terminal. (Tr. 54–55.) He also
acknowledged that he has had heated conversations and used
profanity with union officials during union-management meet-
ings, and that both union officials (such as Herman Green, Ron
Jordan, and Little) and management officials (such as Supervisor
Joe Hempfield and former Manager Marshay Gibbons) have
used profanity at the facility. (Tr. 61–65.) Finally, Lytle testified
that prior to Little’s discharge, no employees at the Cleveland
facility had ever been issued written discipline, or been sus-
pended or discharged for using profanity. (Tr. 419.)
3. In May/June 2016, employees complained to the union
regarding their conditions of employment, in particular, the
manner in which they had been treated by Manager Jon Heben
The undisputed evidence establishes that in May and June
2016, several drivers complained to Little in his capacity as the
chief union steward about the way Heben treated them. In par-
ticular, Drivers Danielle Young, Carolyn Hargrove, and Darnita
Manigault testified that they reported Heben’s demeaning and
disrespectful attitude towards them to Little and the Union.
Carolyn Hargrove, a current employee of the Respondent, tes-
tified that in June 2016 she sought out and spoke to Little as chief
union steward about the way Heben spoke to her. (Tr. 334–343.)
In particular, she informed Little that when she had asked Heben
for a schedule, he “went wild,” and spoke to her in a “nasty
voice.” (Tr. 339.) She further described that encounter with
Heben as him going “through his rage . . . eyes bulging out [and]
he was red [in the face].” (Tr. 356–357.) She also testified that
prior to June 2016, on an occasion when she was loading passen-
gers on her bus or had just completed loading them, Heben spoke
to her in a “nasty tone of voice,” and that he displayed a “nasty,
provoking attitude” towards her. (Tr. 346.) She also informed
Little that Heben raised his voice in the encounters with her, and
that he “. . . didn’t talk to [her] like he would talk to a human
being.” (Tr. 347.)
Darnita Manigault, a 22-year employee currently employed
by the Respondent, testified that in May/June 2016, she had dis-
cussions with Little about Heben and how he treated her at work.
When she returned to work from a lengthy medical leave, she
was in the process of taking a refresher course to drive. She tes-
tified that before she completed the course, in a telephone call,
Heben ordered her back to driving routes, but she informed him
that she was not proficient in certain areas of driving until she
completed the course. (Tr. 408–410; GC Exh. 24.) Heben re-
fused to consider her concerns and instead he insisted that she
drive, resulting in her ending the phone call. Upon registering
her complaint with the Union, Little advised her to record the
incident, and she submitted a written statement to the Union.
(GC Exh. 24.)7
In addition, Danielle Young testified that in June 2016, she
spoke to Little about the fact that Heben spoke to her with “atti-
tude, smartness, [and was] cocky,” and that such conduct usually
that incident appears to have occurred on August 8, 2016, several months
after the June 24, 2016 incident that resulted in Little’s discharge. (Tr.
415–416; GC Exh. 23.)
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
occurred while she was loading passengers on her bus. (Tr. 258–
260.) When Young conveyed her concerns about her working
conditions to Little, he advised her to keep a written record of
her interactions with Heben. Young also testified that after tak-
ing her problems with Heben to Little, Little indicated that he
would talk to Heben about it. (Tr. 316–318.)
4. On June 24, 2016, employee Danielle Young reported to
work to drive on a route to Buffalo, New York
Danielle Young started her employment with Respondent in
March 2015 as an “on the board” driver, meaning she did not
have a regular bus route, but instead was called by the Operations
Support Center (OSC) to be assigned her routes. On June 24,
2016, Young was called to report to work for a trip from Cleve-
land, Ohio, to Buffalo, New York. On her way to the Cleveland
facility she noticed that the east-bound route she needed to take
from the facility to Buffalo was closed due to an accident.
Young was concerned about finding a route around the accident
and the blocked traffic.
5. The incident on June 24, 2016, concerning Heben’s
treatment of Young
Upon arriving at the Cleveland facility at 1:30 p.m. on June
24, Young went to the drivers’ room, logged in on Respondent’s
computer system to determine what bus she was assigned, and
noticed that there was no bus in the system for her trip to Buffalo.
Young spoke to Reports Clerk Renee Ramsey who indicated she
would get her a bus for her route. Young then spoke to other
employees about what route to take to avoid the accident. Heben
then came into the drivers’ room. Once a bus was assigned to
Young, Heben talked to her about alternate routes that she might
take to get around the accident. Young testified that throughout
that conversation, Heben told her to be quiet and to listen to him,
which upset her.
Young loaded her passengers on her bus, but before she de-
parted on her route she approached Little and expressed her con-
cerns about Heben. Young, who was visibly upset, expressed to
Little that Heben had been disrespectful to her when she asked
about directions around the accident. She informed him that
Heben had been yelling at her again, and waving his finger in her
face. (Tr. 170.) Little testified that he then decided to have a
conversation with Heben regarding his interaction with Young.
a. The testimonies of Little and Young pertaining to the
June 24 incident
Little, who was accompanied by Young, testified that he got
Heben’s attention as Heben was walking through the vestibule,
and told Heben that he wished to talk to him. Heben agreed, and
they met in the vestibule, the section of the facility consisting of
a hallway approximately 15 feet long by 8 feet wide, that is en-
closed by double doors on one side leading into the terminal and
double doors on the other side leading into the loading dock area.
(Tr. 171.) While passengers and employees frequently pass
through the vestibule to go to and from the platform loading dock
area, at that time the doors on both sides were closed and no pas-
sengers or employees were present. Little, who had previously
received complaints from several female drivers about the way
Heben had treated them, testified that he wanted to meet with
Heben to have a pregrievance conversation with him about
Young’s concerns over the way he was treating her, and it was
not Little’s intention to have an argument with Heben. (Tr. 249–
250.) Little testified that in that conversation, he told Heben that
he wanted to talk to him about how he had spoken to Young, but
that Heben denied doing anything wrong. (Tr. 172.) Heben said
that Young should have been on a bus and left, and at that time
he directed her to leave the facility. As he directed her to leave,
he pointed or waived his finger at her. (Tr. 275–276.) Little in-
formed Heben that his yelling and finger pointing was the reason
for their conversation. (Tr. 172.) Heben ignored Little and told
Young she had been there 20 or 30 minutes and should have had
a bus and loaded it. (Tr. 173.) In response to Heben’s questions
as to why Young had not loaded her bus, Young explained that
there was no bus available when she arrived and she had to wait
until the mechanic fixed the bus. (Tr. 173.)
Heben continued to yell and point his finger at Young and Lit-
tle. (Tr. 173.) Little told Heben that if the Respondent had as-
signed the “damn bus” in the system, then they would not be
there. (Tr. 174.) Little told Heben that Young could have “gotten
her shit and left” and then they would not have to speak to any-
one. (Tr. 271–272.) Heben stated that he was not “running the
floor,” but Renee was in charge of the buses. (Tr. 174.) Little
stated that “if Renee . . . did what she was supposed to damn do,
then we still wouldn’t be here.” (Tr. 174.) Heben continued
“waiving his finger” at Little while telling him to stop cursing.
(Tr. 174–175.) Little informed Heben that because of his “be-
havior, . . . finger pointing, and yelling” he did not feel that
Heben was acting like a supervisor. (Tr. 175.)
Heben then moved closer to Little and pointed his finger in
Little’s face (Tr. 175). Little told Heben that it was Greyhound’s
“fucking fault” that there was no bus available for Young to
drive. (Tr. 175.) When Heben told Little to stop swearing, Little
looked at him and said “fuck you.” (Tr. 174–175; 284.) Little
then turned to Young and said that they should go. (Tr. 175–
176.) Little ended the conversation with Heben as he and Young
exited the vestibule area and walked onto the loading dock plat-
form where Young’s bus loaded with passengers was located.
When they left the vestibule area, Heben was walking in the op-
posite direction towards the doors entering the bus terminal. (Tr.
175; 277; GC Exh. 12.)
While Little was on the platform with Young, Heben changed
direction and followed them out. On the platform, Heben yelled
that Young needed to get on the bus and leave. (Tr. 176.) Heben
walked up to Little and yelled at him to stop swearing at him,
and he told Little that he could not say whatever he wanted. (Tr.
176–177; 276–277.) Little turned around to face Heben and told
him “just like you’re putting your finger in my face, I can put my
finger in your face.” (Tr. 177–178.) Little testified that he was
referring to the pointed finger gestures that Heben had made to-
ward him while they were in the vestibule. (Tr. 177.) Heben was
standing very close to Little and they were facing each other. (Tr.
299.) Little pointed his finger at Heben and said that he could
“say whatever the fuck I want to say.” (Tr. 274.) As Little was
saying that, he was pointing his finger on his right hand at Heben
and his hand, with pointed finger, was swinging down across his
body. (Tr. 291–293.) Heben asked Little if he was going to hit
him, Little responded that he was not going to hit him. (Tr. 179;
274.) Heben then exclaimed “you hit me.” (Tr. 179.) Little then
GREYHOUND LINES, INC. 11
denied several times that he had hit Heben, and Heben said in
response that Little was “out of service,” and he walked away.
Little and Young then walked from the dock area into the
driver’s room at the facility. (Tr. 179–180; 274.) Little immedi-
ately tried to call Lytle who was out of the facility, but could not
reach him. Little then reported the incident by telephone to un-
ion official Herman Green. Shortly thereafter, Little spoke to
Lytle on the phone, and Lytle told Little that he was aware of the
situation and he directed Little to leave the facility. Little then
left the facility as directed. (Tr. 182.)
Young’s testimony regarding the incident corroborated Lit-
tle’s testimony on the essential elements of what transpired. She
testified that she was upset with the way Heben had spoken to
her when she arrived, that she shared her concerns about Heben’s
treatment with Little, that there was a discussion in the vestibule
area where Little admittedly used profanity after Heben pointed
his finger and yelled at them. She also testified that when she
and Little exited the vestibule and walked onto the platform,
Heben started toward the opposite set of doors that exited into
the bus terminal. According to Young, if Heben would have
simply continued in the direction of the terminal, the incident
would have ended at that time. (Tr. 277.) However, she testified
that instead, Heben followed them onto the platform and moved
into close proximity of Little, and that Little was gesturing with
his right hand while he was talking to Heben. In addition, she
testified that while she was standing near Little, she bent down
to pick up his scarf that he dropped, and heard Heben say, “Oh,
you didn’t hit me yet,” and then “Oh, you just hit me, you’re out
of here,” and he directed Little to get off the property and leave.
(Tr. 273–274.)
Later that day while on her route to Buffalo, Heben contacted
Young and told her he needed a written statement from her about
the incident. She submitted a handwritten statement to Heben
later that day in which she stated, inter alia, that she did not see
Little hit Heben, and that Heben could have ended the confron-
tation by walking away. (Tr. 281; GC Exh. 12.) In addition, sev-
eral days after the incident Young went to Lytle’s office and in-
formed him that Little “did not hit” Heben. (Tr. 283.) She also
informed Lytle that the incident on the loading platform could
have been avoided if Heben had continued to walk out of the
vestibule to the terminal area.
b. The testimony of Heben pertaining to the June 24 incident
Heben’s testimony, while for the most part consistent with Lit-
tle’s and Young’s about what was said during the incident in the
vestibule and on the platform, which undisputedly included Lit-
tle’s use of profanity, differed in some very material ways. First,
while Heben testified that Young had been upset and was crying
before she left for her route, he did not attribute that to the way
he had treated her or spoken to her. Instead, he testified that she
was upset and crying because she said her purse had been stolen
and someone had written checks on her account which caused it
to be overdrawn, and that her pay card was not working and she
had no money. (Tr. 523–525.)8 Second, according to Heben, Lit-
tle’s use of profanity during the incident was unprovoked. In

8 Lytle’s notes from Little’s investigatory meeting clearly reflect that
Heben stated in that meeting that Young was upset over personal issues
that involved someone stealing her purse from her home. (Tr. 497.)
that regard, Heben testified that after Little indicated that he
wished to speak to him in the vestibule, Little asked him why he
was harassing Young, and he (Heben) responded that all he had
done was to help her with directions and in finding a bus to drive.
(Tr. 540.) According to Heben, Little, without provocation, then
went “ballistic on [him]” stating “fuck Greyhound” and that it
was Greyhound’s “fucking responsibility to have a fucking bus
for the driver.” (Tr. 541.) With regard to the assertions by Little
and Young that Heben was pointing his finger at them, on direct
examination Heben denied or could not recall if he made any
hand “gestures” to Young. He did, however, admit that he raised
his hand and pointed his finger at Little, but he claimed it was
only in response to Little swearing at him. (Tr. 544.) Third, and
most importantly, while Little testified that he never stuck
Heben, and Young testified that she never saw Little hit Heben,
Heben testified that Little made contact with his stomach using
a “closed hand,” specifically stating that Little “punched me with
his fist.” (Tr. 574–577; 584.) He also specifically testified that
Little began swinging his arm at him while continuing to curse,
and he “swung down and hit me in the stomach.” (Tr. 548.) Ac-
cording to Heben, the punch occurred at 2:45 to 2:46 p.m. and it
was captured on Respondent’s surveillance video. (Tr. 562–563;
R. Exh. 3.) Heben also testified that immediately after being
struck by Little, he physically “clenched” and said “you just
struck me.” (Tr. 578.) Heben further testified that after Little
allegedly hit him, he felt “a stinging and a burning-type feeling.”
(Tr. 549.)
According to Heben, that after being stuck by Little he called
the Cleveland Police and filed a police report alleging that Little
assaulted him. (Tr. 582; R. Exh. 4.) That police report estab-
lishes that at 3:32 p.m. the police responded to a reported assault
at Respondent’s facility involving Little and Heben. According
to the report, Little and Heben had a verbal argument that “esca-
lated” and Little “swung his right hand downward striking
[Heben] in his stomach where he had received hernia surgery in
the past,” and that Heben “believes it was intentional.” (R. Exh.
4.) The police reports further reveals that Heben “refused EMS”
medical treatment for the alleged assault. (R. Exh. 4.)
In addition, Heben testified that after he filed the police report,
approximately 3 and a half hours after he was allegedly hit in the
stomach by Little, he took a photograph of his stomach, which
was offered by the Respondent and admitted into evidence as
Respondent Exhibit 5. Heben testified that he took the photo-
graph with his cell phone by holding the phone in his right hand
and holding up his shirt with his left hand to show his stomach.
Heben also testified that he took the picture at “6:00, 6:20, 6:30”
that evening, and the photograph shows a wrist watch on the per-
son’s left hand with shows a time of approximately 6:25. (Tr.
549; R. Exh. 5.) The color photograph of the stomach shows red
coloration on the left side of the stomach where Heben alleges
he was stuck, and also red coloration on the right side of the
stomach. The photograph also shows that the left hand holding
up the shirt has red coloration on the hand’s knuckle area. (R.
Exh. 5.)
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6. The Respondent’s investigatory interview with Little
concerning the June 24, 2016 incident
The Respondent held a meeting with Little concerning the in-
cident approximately 10 days later. In that meeting, Union Stew-
ard Tyrone Neal attended with Little, and Lytle was present with
Driver Supervisor Harold Duncan. Although Little attended the
meeting to provide his account of what transpired on June 24, the
Respondent permitted Heben, who was an undisputed participant
in the incident, to be present and to participate in Little’s inves-
tigatory interview. Lytle questioned Little about the incident and
Little tried to answer his questions, but he was interrupted by
Heben who was either accusing Little of lying or stating that Lit-
tle’s statements were not the way it happened. (Tr. 184–185.)
Lytle eventually removed Heben from the interview.
7. The Respondent discharged Little on July 13, 2016
Lytle, who oversees the operations at the Cleveland facility,
testified that he decided to discharge Little. (Tr. 65.) While Lytle
was not at the facility on the day of the incident, he testified that
he watched the video and reviewed statements from employees
concerning the incident, decided to discharge Little, and then
prepared a discharge letter. (Tr. 66; Jt. Exh. 3.)
According to Lytle’s testimony, he based Little’s discharge in
part on the statement of baggage handler Melvin Flowers, who
wrote that he saw Little “having an argument” with Heben, and
he heard one of them say “don’t touch me . . . I didn’t touch you.”
(GC Exh. 14.) Flower’s statement makes no mention of the use
of profanity or that Little punched Heben. Lytle testified that he
also read Young’s statement before deciding to discharge Little,
wherein she alleged that Little did not hit Heben. He also testi-
fied that before discharging Little, he relied on the written state-
ment of employee Marlon Jackson who was cleaning a bus and
saw Little and Heben on the dock. (Tr. 79–80; GC Exh. 15.) Ac-
cording to Jackson’s statement, he thought he heard someone
say, “don’t touch me, I didn’t touch you.” (GC Exh. 15.) That
statement also makes no mention of Little’s use of profanity, nor
does it allege that Little struck Heben in the stomach. Lytle tes-
tified that he also considered the written statement of baggage
handler Zephaniah Lawson, who stated that he saw Little “touch
[Heben] on the shoulder yelling in his face.” (R. Exh. 9.) Finally,
Lytle testified that he considered Heben’s statement sent via
email to him at 6:41 p.m. on the day of the incident, where he
alleged that Little “stuck [him] in [his] stomach.” (R. Exh. 10.)
Even though Lytle considered the statements of the above-
mentioned employees in making his decision to discharge, he
never asked Little for a written statement explaining what hap-
pened at the facility that day. (Tr. 85–86.) Lytle also testified
that he reviewed the surveillance video which captured the inci-
dent on the platform dock. With regard to the alleged punch,
Lytle testified that the video supported his conclusion that Little
struck Heben because it showed Little’s hand came down and
then Heben “had a reaction.” (Tr. 104–105.) He further testified
that Heben “went backwards a little bit” and then Heben turned
and walked away. (Tr. 105.)
According to Lytle, the Respondent did not receive com-
plaints, either verbally or on customer complaint forms, about
the incident. (Tr. 99.) However, he testified that his decision to
discharge Little was based on Little’s “hostility and his overall
conduct” in the loading dock area. (Tr. 81–82.) Lytle also testi-
fied that his decision was based on his determination that Little’s
conduct constituted violations of Driver Rules 2.1 (Hostility) and
2.3 (Personal Conduct and Courtesy). (Tr. 84–85.)
On July 13, 2016, Lytle met with Little at the facility and dis-
charged him. Lytle provided Little with the discharge letter,
which stated as follows:
On the above date and time you arrived at the Cleveland
terminal at approximately 2:35 p.m. after completing your
run. You encountered Operator Young who was assigned
to a schedule with a 2:00 p.m. departure time. Operator
Young was apparently upset that Customer Experience
Manager had spoken to her about getting her schedule on
the road.
As you are aware, on time performance is one of the
largest complaints from our customers. Rather than assist-
ing Operator Young to get her schedule on the road, you
delayed the passengers further by taking Young with you to
confront Manager Heben. The confrontation began inside
the first set of doors by the north loading area, where you
stated “it was Greyhound’s fucking fault that there was no
bus in the system.” “It was Greyhound’s fucking responsi-
bility to have a bus in the system.” “Fuck Greyhound,” “if
Greyhound would have had a fucking bus in the system she
wouldn’t have to fucking talk to anybody.” Mr. Heben
asked you to stop cursing, you replied, “I can say whatever
the fuck I want, fuck you.” Heben repeatedly asked you to
quit swearing. Each time your reply was the same, “fuck
you.”
Heben then moved outside in an attempt to get Operator
Young to get the bus out. Once outside in the loading area
where you were clearly visible by the passengers on the bus,
you were captured on video flaying your arms, pointing and
swinging them in the direction of Heben. During this ex-
change, you actually made contact with Heben, hitting him
in the stomach while you continued to spew profanity.
These actions include unrestrained use of profanity and
such uncontrolled behavior that the blow to Heben’s stom-
ach was nearly inevitable. You are in violation of Driver’s
rules 2-1 Hostility and 2-3 Personal Conduct and Courtesy
and ultimately gross insubordination.
As a result of the incident that occurred on June 24,
2016, your employment with Greyhound Lines, Inc. is ter-
minated effective immediately. . . . (Jt. Exh. 3.)
At that time, Little reviewed the discharge letter and informed
Lytle that he did not deny using profanity with Heben, but he
insisted that he “never physically touched” Heben. (Tr. 187.)
On that same day, Little filed a grievance over his discharge.
(GC Exh. 2.) In a letter dated July 25, 2016, the Respondent
denied the grievance at the second step of the grievance process.
(GC Exh. 3.) The parties had a third step grievance hearing on
August 31, 2016, which was attended by union representative
Green, Heben, and Respondent’s Regional Manager, Joseph
Hapac. (Tr. 389; GC Exh. 4.) Green testified that Hapac watched
the surveillance video of the incident in that meeting, and Hapac
indicated that he did not see any contact made by Little. (Tr.
389.) Green, whose testimony on this subject was
GREYHOUND LINES, INC. 13
uncontradicted, specifically testified that Hapac said he
“couldn’t see where the contact was made.”9 (Tr. 395.) Never-
theless, the Respondent, by Hapac, denied the grievance at the
third step of the grievance process in a letter dated September 7,
2016. In that letter, the Hapac asserted that “Operator Little, on
the day in question, used unrestrained profanity towards Jon
Heben. In the process of flaying his arms, he made contact with
Jon Heben’s stomach area, which is not acceptable under any
circumstance.” (GC Exh. 4.) Thereafter, the grievance went to
the arbitration stage of the proceeding, but the Union decided not
to have an arbitrator decide the issue of Little’s discharge.10
There is no evidence that Little had been disciplined or sus-
pended for any workplace infraction prior to the incident on June
24. In addition, as mentioned above, it is undisputed that prior
to Little’s discharge, no employees at the Cleveland facility were
disciplined, suspended, or discharged for using profanity. (Tr.
49.)
8. The video evidence of the June 24, 2016 incident on the
loading platform
In support of its assertion that Little hit Heben in the stomach,
the Respondent offered into evidence a surveillance video which
captured the incident that occurred on the loading dock platform.
(R. Exh. 3.) The Respondent’s surveillance video of the incident
is from a camera mounted on the wall or ceiling over the “express
gate” in the platform dock area. (Tr. 562–565; R. Exh. 3.) The
video is visual only and does not contain audio.
A review of that video shows that at 2:45 p.m. (14:45:46 on
the video timer) Little can be seen entering the camera view on
the platform walking toward the buses with Young beside him.
He appears to be holding a coat or some kind of garment in his
left hand. At 14:45:47 Little turns to face someone out of view,
presumably Heben. Little appears to be talking and raises his
right hand to shoulder level. With a pointed finger he swings it
down across his body while facing that person. At 14:45:48 Lit-
tle turns away and walks with Young beside him. Heben then
enters the camera view walking toward Little who has his back
to Heben. At 14:45:49 Heben walks up behind Little. At
14:45:50 Little stops and turns toward Heben who moves close
to Little. At 14:45:51 Little stands facing Heben and appears to
be speaking to him with his right hand down to his side. Heben
has his back to the camera. At 14:45:53 Little and Heben are
standing close to each other, face to face. Young is standing be-
hind Little. Both Little and Young are facing the camera and
Heben is facing them with his back to the camera. From
14:45:53 to 14:45:59 Little is speaking to Heben. At 14:45:59 to
14:45:60 Little swings his right hand with pointed finger across
his body between he and Heben while appearing to talk. At the
completion of his swinging motion his finger on his right hand
is still pointing.
At 14:46:01 Little appears to still be speaking to Heben and
he brings his right hand down to the right side of his body. At
14:46:02 Little brings his right hand with pointed finger back to
shoulder level. At 14:46:03 Little swings his right downward
across his body. This is the point where the Respondent’s

9 Hapac was not called to testify in the instant proceeding, and
Green’s testimony was therefore unrebutted.
witnesses allege that Little struck or punched Heben (Tr. 578),
but Heban’s back is to the camera and it does not establish that
Little’s swing of his right hand with pointed finger made contact
with Heben’s stomach. The video does show that after Little
swings his hand, Heben stands still with no discernible body
movement, and then raises his right hand and points off in the
direction in front of him and beyond Little.
After the alleged punch to the stomach, at 14:46:04, Heben,
still without moving, brings his hand down to his side from
pointing, and Little turns and walks away from Heben. At
14:46:05 Heben is standing in place while Little walks away
from him taking two steps. Heben then follows Little. At
14:46:06 Little turns back around to face Heben. While standing
perpendicular to Heben, Little raises his right hand to waist level
and then swings it downward again in front of him across his
body (but not between he and Heben), while still appearing to
speak to Heben. At 14:46:07 Little drops what appears to be
clothing from his left hand and makes the swinging right hand
gesture again, this time with his right hand pointed finger ending
near his left shoulder. Little looks down at the garment he
dropped while Young picks it up. At 14:46:08 Little turns away
from Heben and starts to walk away with Young. At 14:46:09
Little stops and turns to face Heben again, and swings his right
hand again while appearing to speak. At 14:46:10 Heben turns
away from Little and points again with his right hand in the di-
rection beyond Little. At 14:46:11 Heben, now facing the cam-
era with his back to Little, walks away. At 14:46:12 Heben
leaves the camera’s view. And at 14:46:13 Little and Young
walk away while Little appears to continue speaking (presuma-
bly to Heben who is outside camera view), swinging his right
hand with pointed finger in emphasis several more times before
walking away with Young and exiting the camera’s view.
9. The credibility determinations
Since the testimonies of Heben and Lytle differ from that of
Little and Young on some critical matters, including the very im-
portant question whether Little struck or punched Heben, I must
make determinations on the credibility of the witnesses. Credi-
bility determinations may rely on a variety of factors, including
the context of the witness’ testimony, the witness’ demeanor, the
weight of the evidence, established or admitted facts, reasonable
inferences that may be drawn from the record as a whole, and the
inherent probabilities of the allegations. Double D Construction
Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB
622, 623 (2001) (citing Shen Automotive Dealership Group, 321
NLRB 586, 589 (1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir.
2003). Credibility findings need not be all or nothing proposi-
tions. Indeed, nothing is more common than for a judge to be-
lieve some, but not all, of the testimony of a witness. Daikichi
Sushi, 335 NLRB at 622; Jerry Ryce Builders, 352 NLRB 1262
fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d
749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474
(1951).
My overall observation during the trial was that the General
Counsel’s witnesses appeared sincere and honest in their
10 The Respondent asserts that it then filed a complaint in Federal
District Court in the Northern District of Ohio seeking to compel arbitra-
tion of all claims in Little’s grievance. (R. Br. pp. 13–14.)
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
demeanor, and they testified in a consistent, convincing, and
straightforward manner. Current employees Hargrove and Man-
igault testified in a truthful manner about the way they had been
treated by Heben while at work, and that they registered com-
plaints with Little and the Union concerning their work-place in-
teractions with Heben. As current employees who had no in-
volvement with the June 24 incident, their testimonies appeared
unbiased and sincere. In addition, the fact that they provided
testimonies adverse to the interests of their current employer
warrant additional weight to their statements. The Board has
held that where current employees provide testimony against the
interests of their employer, and thus contrary to their own pecu-
niary interests, such testimony is entitled to additional weight
when credited. Avenue Care & Rehabilitation Center, 360
NLRB 152, 152 fn. 2 (2014); PPG Aerospace Industries, Inc.,
353 NLRB 223 (2008); Advocate South Suburban Hospital, 346
NLRB 209, 209 fn. 1 (2006); Flexsteel Industries, Inc., 316
NLRB 745 (1995), affd. mem. 83 F.3d 419 (5th Cir. 1996).
Young, whom at the time of her testimony was no longer em-
ployed by the Respondent but was employed at the time she pro-
vided the Respondent with verbal and written statements assert-
ing that Little did not strike Heben, also appeared to be truthful
in her testimony. Her testimony regarding the incident was also
consistent with Little’s testimony.11 Of all the General Counsel
witnesses, however, I found Little to be the most credible. He
was very convincing in his demeanor and testified honestly,
freely admitting his unflattering use of profanity in the incident,
in both the vestibule and on the platform. His testimony was also
straightforward, believable, and consistent with Young’s testi-
mony in that they corroborated each other on key points.
The Respondent’s witnesses, on the other hand, testified in a
less convincing manner, and their testimonies were at times eva-
sive, guarded, inconsistent with the evidence, and implausible.
Lytle, who testified that he made the decision to discharge Little,
presented testimony that was unreliable as it was at times eva-
sive, implausible, and simply not believable. Even though he
testified that he had a conversation with Young concerning the
incident, and he read her written statement in which she clearly
stated that she did not see Little hit Heben, he incredibly testified
that he did not recall her saying that Little did not hit Heben. (Tr.
70.) Since Young was present at the incident, one would expect
Lytle to be aware of and recall what she said regarding whether
Little struck Heben. That alleged punch to the stomach was an
important factor because it, along with the use of profanity,
served as the basis for Little’s termination. Lytle also testified
that when he decided to discharge Little, he considered his 20
years of work experience with the Respondent. However, he
also testified that he was unaware if Little had previously been
suspended, and he stated that he could not recall Little’s work
record. (Tr. 78.) I find it difficult to believe that the person who
reviewed Little’s work record and then decided to discharge him,
could not recall what that work record consisted of.
Evidence of Lytle’s incredible testimony was also reflected by

11 I note that while Little testified that Heben asked him if he (Little)
was going to hit him, Young testified that Heben instead stated “you
didn’t hit me yet.” I find the fact that Young’s asserted statement by
Heben on this subject differs from that alleged by Little is not a material
the fact that he initially denied Heben was present during Little’s
investigatory interview (Tr. 88, 95). Lytle’s denial, however,
was inconsistent with his own notes from that interview which
clearly showed Heben was present. (Tr. 97; GC Exh. 30.) Lytle’s
denial was also inconsistent with his subsequent admission on
direct examination during Respondent’s case-in-chief, that
Heben was present at Little’s investigatory interview. (Tr. 497.)
Lytle, who testified that his investigation of the incident war-
ranted his determination that Little stuck Heben, was also defen-
sive and evasive when confronted by counsel for the General
Counsel with the fact that he watched the video and he could not
see Little hit Heben because Heben’s back was toward the cam-
era. (Tr. 90.) Reluctantly, Lytle admitted that he did not see Lit-
tle’s hand make contact with Heben’s stomach. (Tr. 90–91.)
On that critical question of whether Little actually hit Heben,
Lytle was also evasive when questioned about the testimony he
provided during Little’s contested state unemployment hearing.
(Tr. 490–495; GC Exh. 17.) In that connection, he testified in
the instant hearing that he did not recall being asked at the un-
employment hearing about whether Young told him Little did
not hit Heben. (Tr. 491.) However, after counsel for the General
Counsel played an audio recording of his testimony from that
unemployment hearing, he reluctantly admitted that Young told
him Little did not hit Heben. (Tr. 494–495; 500–501.)
I also found Heben an unreliable witness and his testimony
not credible. He appeared at times to be untruthful in his asser-
tions, in particular with his assertion that Little intentionally
punched him in the stomach. His testimony was at times vague,
conclusory, contradictory, and appeared contrived, implausible,
and simply not believable. While Heben testified that Young
was upset and crying when he spoke to her that day, he did not
acknowledge that it was due to the degrading and harassing man-
ner in which he had spoken to her, as Little and Young had tes-
tified. Instead, he incredibly asserted that Young’s crying was
due to her alleged assertion that someone stole her purse, wrote
checks on her account causing it to be overdrawn, and because
her pay card was not working and she had no money. Such tes-
timony has no basis in the record and was unbelievable and con-
trived. Heben’s testimony was also contradictory in that he ini-
tially denied that he called Young while she was on her bus to
ask her for a statement about the incident, or that he even called
her at all that day. (Tr. 609–610.) However, he was impeached
with the written statement he drafted and emailed to Lytle on the
day of the incident, wherein he stated: “I have also requested a
statement from [Cleveland] Driver Danielle Young who wit-
nessed the entire incident.” (Tr. 610; R. Exh. 10.)
In addition, Heben acknowledged that when the confrontation
started, Little was not angry. (Tr. 599.) However, Heben testi-
fied that after Little accused him of harassing Young and he de-
nied any wrongdoing, Little simply went “ballistic on [him]”
stating “fuck Greyhound” and that it was Greyhound’s “fucking
responsibility to have a fucking bus for the driver.” (Tr. 541.)
Little and Young both testified that Heben’s finger pointing had
distinction that would detract from her credibility. In any event, and I
find that it is more plausible that Heben asked Little if he was going to
hit him.
GREYHOUND LINES, INC. 15
provoked Little’s use of profanity, yet Heben’s testimony would
have one believe that Little, without any provocation, just went
“ballistic” on him with no prompting. That testimony rings hol-
low, and I find that Heben’s denials that he used actions or ges-
tures which provoked Little are not plausible or believable, and
neither is his assertion that he could not recall if he made hand
“gestures” to Young. (Tr. 544.)
Thus, in instances where the testimonies of Respondent’s wit-
nesses differ from that of the General Counsel’s witnesses, I
credit the testimonies of the General Counsel’s witnesses.
10. The specific assertions that Little punched Heben in the
stomach are not only incredible, they are not supported by
the record evidence
While I do not credit the testimonies of Respondent’s wit-
nesses where they conflict with that of the General Counsel’s
witnesses, I particularly do so on the very important question of
whether Little punched Heben. I credit Little’s testimony that
his hand never made contact with Heben, and conversely, I spe-
cifically discredit Heben’s and Lytle’s assertions that physical
contact occurred. This finding is based not only on Heben’s and
Lytle’s poor testimonial demeanor and incredible assertions, but
also on the fact that their assertions are not supported by or con-
sistent with the undisputed record evidence.
Heben’s and Lytle’s assertions that Little punched Heben in
the stomach have been strongly and consistently denied by Little
and Young. While Heben testified that the stomach punch was
the result of Little’s hand gesture of swinging his hand down
while cursing (Tr. 548), he testified that the blow was neverthe-
less intentional, and that contact was made with Little’s “closed
hand” or “fist.” (Tr. 574–577; 584.) According to Heben, the
punch occurred at 2:45 to 2:46 p.m. and it was captured on Re-
spondent’s surveillance video. (Tr. 562–563; R. Exh. 3.) Heben
also testified that immediately after being struck, he physically
“clenched” and said “Mr. Little, you just struck me.” (Tr. 549,
578.) Heben further testified that after being punched, he felt “a
stinging and a burning-type feeling.” (Tr. 549.)
Lytle, who was not at the facility when the incident occurred,
investigated the matter in part by viewing the surveillance video.
He testified that the surveillance video served as proof that Little
struck Heben, even though he admitted Heben’s back was to-
ward the camera and he could not see the contact. Lytle’s testi-
mony reflects that he based that determination on Heben’s reac-
tion immediately after Little swung his arm downward across his
body. Lytle testified that when Little’s hand came down, Heben
“had a reaction.” (Tr. 104–105.) Lytle also testified that when
Heben was punched, he “went backwards a little bit” and then
“turned and walked away.” (Tr. 105.)
Importantly, these testimonial assertions from Heben and
Lytle are not supported by the undisputed video evidence which
fails to establish that Little hit Heben. First, as Lytle reluctantly
admitted, the video evidence of the alleged stomach punch has
Heben with his back to the camera and it does not show that Lit-
tle’s hand gesture made contact with Heben’s stomach. Second,
the video evidence portraying what happened immediately after

12 Tr. 620.
the alleged punch is not consistent with the plausible reactions
of someone who was allegedly punched in the stomach. As men-
tioned above, Heben testified that immediately after being
struck, he physically “clenched,” told Little “you just struck me,”
and immediately felt “. . . a stinging and a burning-type feeling”
on his stomach. The video evidence, however, shows no dis-
cernible body movement by Heben after Little’s hand gesture.
The only movement by Heben is the raising of his right hand to
point off in the direction in front of him. After receiving a closed
fist punch to the stomach by Little (who at the time of the inci-
dent weighed 345 pounds),12 which had a force sufficient to
leave a “stinging” and “burning-type feeling,” it strains credulity
to believe that Heben had no discernible physical reaction other
than to raise his right hand and point off in the distance. If in
fact Little had administered such a closed fist body blow to
Heben, it is plausible that he would have made some type of body
movement, whether it was clenching, doubling over in pain,
moving backward away from Little, or pushing Little away from
him. Incredibly however, the video shows no such movements.
As such, Heben’s assertions are simply not plausible, believable,
or supported by the evidence.
Lytle’s testimony on this critical point is also unsupported by
the video evidence. Lytle determined that Little struck Heben
after viewing the surveillance video, testifying that when Little’s
hand came down, Heben “had a reaction” (Tr. 104–105) and
Heben then “went backwards a little bit,” and then “turned to
walk away.” (Tr. 105.) However, none of that testimony is con-
sistent with the video which establishes that Heben did not have
a reaction, did not move backwards, and he did not turn to walk
way. To the contrary, the video shows that it was Little who
turned and walked away, and Heben, rather than turning and
walking away himself, actually took several steps toward Little
after the alleged body blow was administered. When asked at
trial “Why did you follow him?” Heben incredibly responded “I
don’t know.” (Tr. 579.)13
Thus, the video evidence offered into evidence by the Re-
spondent to support its assertion that Little punched Heben, ac-
tually establishes the opposite—that Little did not make physical
contact with Heben. As such, the video evidence in this case
further establishes that Heben’s and Lytle’s assertions are not
credible, plausible, or believable.
In support of its assertion that the body blow occurred, Re-
spondent offered a photograph of what Heben alleged was his
stomach approximately 3½ hours after he was allegedly
punched. (R. Exh. 5.) Although nothing in the photograph iden-
tifies the individual’s stomach as that of Heben’s, Heben testified
that he took the photograph with his cell phone by holding the
phone in his right hand and holding up his shirt with his left hand
to show his stomach. The photograph shows a wrist watch on
the person’s left hand with a time of approximately 6:25, approx-
imately 3½ hours after the alleged punch. (Tr. 549; R. Exh. 5.)
The color photograph of the stomach shows a red coloration on
the left side of the stomach where Heben alleged he was stuck
by Little’s right fist, and also red coloration on the right side of
13 As mentioned earlier, by Order dated May 5, 2017, I granted the
General Counsel’s motion to correct the transcript to read: “Why did you
follow him.”
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the stomach. The photograph also shows that the left hand hold-
ing up the shirt has red coloration on the knuckle area of the
hand. (R. Exh. 5.)
The General Counsel argues in its brief that there is no evi-
dence other than Heben’s testimony to establish that the individ-
ual’s stomach in the photograph is actually Heben’s stomach.
While that is true, and while I have found Heben to be an unre-
liable and incredible witness, I will nevertheless provide him the
benefit of the doubt in analyzing this piece of photographic evi-
dence, and treat it as if it were a picture of his stomach. That
being said however, I find the photograph does not establish that
Little punched Heben, and I have determined that it is entitled to
no weight.
Although Heben was allegedly punched on the left side of his
stomach, he was at a loss to explain why the right side of his
stomach had the same red coloration that it had on the left side.
(Tr. 552–553.) Upon further examination by counsel for the
General Counsel, Heben reluctantly admitted red coloration on
the right side of his stomach where he was not hit, as well as on
the left side where he testified he was allegedly hit. When
pressed by Counsel for the General Counsel to explain why his
whole stomach area was red when he was only hit on the left
side, he stated: “Well, I’m saying that I was hit in this area [the
left side]. I don’t know that I was hit in the whole area, but that’s
the way it looked. That’s all I can tell you.” (Tr. 553.) Likewise,
Heben had no plausible explanation for the red coloration on his
left hand that was holding up his shirt in the photograph. On
examination by counsel for the General Counsel, even though
Heben admitted redness on his stomach (Tr. 551), he was evasive
about acknowledging the same red coloration on his left hand
which is clearly visible in the photograph. In that connection,
when Counsel for the General Counsel asked: “And in the pho-
tograph, your hands have some redness, that hand that you’re
holding up,” Heben answered “I don’t know, but possibly.” (Tr.
551–552.) Incredibly, Heben then testified: “I don’t really see
any kind of redness on my hand that looks anything close to the
redness that’s on my stomach. But I don’t know what to say
about that. I don’t see what you’re referring to.” (Tr. 552.)
If Heben was punched on the left side of his stomach as he
claimed and not the right side where admittedly no blow oc-
curred, it is implausible that both sides of his stomach would
have same red coloration, and it is equally implausible that his
left hand knuckles would have red coloration. What is plausible,
however, is that Heben, after claiming he was punched by Little
when in fact he was not, rubbed the knuckles of his left hand
against his stomach causing the red coloration that is seen on that
hand and on both sides of his stomach in the photograph.
The veracity of Heben’s assertion that this photograph shows
he was punched by Little is further undermined by his actions
and assertions after the punch allegedly occurred. In this regard,
the time-line in which the events unfolded establishes that at 2:46
p.m. Little allegedly administered a closed fist punched to
Heben’s stomach with a force that resulted in a “stinging” and
“burning-type feeling.” At 3:32 p.m., approximately 45 minutes
after sustaining that blow, the police were called to the facility
where they generated a police report that showed Heben, despite
a stinging and burning feeling, “refused EMS” medical attention.
(R. Exh. 4.) At approximately 6:25 p.m., almost 3 hours after
the police were summoned and approximately 3 hours and 45
minutes after the alleged punch was administered, Heben alleg-
edly took a photograph of his stomach which has red coloration
from the punch. (Tr. 549; R. Exh. 5.) Then, at 6:41 p.m., approx-
imately 4 hours after the blow was allegedly administered,
Heben emailed his statement about the incident and the photo-
graph of the alleged injury to Lytle and others. (R. Exh. 10.) At
that time, approximately 4 hours after being punched, Heben in-
dicated in his statement that he was going to seek medical treat-
ment “for a quick examination as I am having discomfort where
I was struck and feeling a little sick to my stomach too.” (R. Exh.
10, p. 2.)
I find these facts establish that the alleged blow never oc-
curred, and Heben’s assertion that he left at the end of the day,
approximately 4 hours later, due to the pain in his stomach is not
credible, plausible, or believable. In that regard, I find it implau-
sible that Heben would have refused medical attention offered
by the police, especially where the alleged blow caused pain in
the form of a stinging and burning feeling. It is plausible that if
he really was experiencing pain from the blow, he would have
immediately sought the medical attention that was offered, or he
would have asked for medical attention if it was not offered.
Likewise, it is plausible that if he was feeling pain, he would
have shown the police officers the red marks left from the injury,
or he would have had the police take a picture of it at that time
as proof of the attack. On that subject, it is important to note that
when asked by counsel for the General Counsel if he offered to
lift his shirt up so the police could take a photograph of his al-
leged injury, Heben answered: “No, I didn’t offer.” (Tr. 583–
584.) In addition, it is implausible that Heben, after sustaining a
painful injury that was serious enough to warrant a police report,
would wait 3 ½ hours before taking a picture of the red marks
allegedly left by the punch. Finally, it is implausible that Heben,
who refused medical attention offered by the police, would
thereafter, 4 hours after the punch, claim that he had to leave
work to seek medical attention. None of Heben’s story adds up,
and quite frankly, I find that Heben fabricated the punch to the
stomach and his alleged photographic proof of the punch. This
finding is consistent with, and supported by, that fact that Heben
and Lytle were not credible witnesses and their assertions were
not worthy of belief.
B. The Contentions of the Parties
The General Counsel argues that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discriminatorily discharging
Little because he engaged in union and protected concerted ac-
tivities. The General Counsel also alleges that Respondent vio-
lated Section 8(a)(1) of the Act by maintaining and enforcing
unlawful work rules 2–1, 2–3, and 2–7, and by discharging Little
pursuant to rules 2-1 and 2-3. The Respondent, on the other
hand, argues that it lawfully discharged Little for his profanity
and violent actions, and even if he was engaged in union activi-
ties, his actions were beyond the protections afforded by the Act.
In addition, Respondent asserts that its work rules should be
found lawful.
C. Analysis
1. Little was engaged in union and concerted activity for the
GREYHOUND LINES, INC. 17
purpose of mutual aid or protection, and the Respondent dis-
charged him because of that activity, in violation of Section
8(a)(3) and (1) of the Act.
a. In the June 24 incident Little was engaged in union activity
and concerted activity for the purpose of mutual aid
and protection
Section 7, the cornerstone of the Act, provides that employees
“shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other mutual
aid or protection. . . . “ To ensure that employees are free to ex-
ercise their Section 7 rights without fear of reprisal, Section
8(a)(3) of the Act makes it an unfair labor practice for an em-
ployer to discriminate against employees “in regard to hire or
tenure of employment or any term or condition of employment
to encourage or discourage membership in any labor organiza-
tion.” In addition, Section 8(a)(1) of the Act makes it an unfair
labor practice for an employer to “interfere with, restrain, or co-
erce employees in the exercise of the rights guaranteed in Section
7.” Thus, the Act prohibits employers from discriminating
against employees by discharging them on the basis of their un-
ion activities and/or for discharging them for exercising their or-
ganization and collective-bargaining rights, including their right
to engage in concerted activities for the purpose of mutual aid
and protection. See MCPC Inc. v. NLRB, 813 F.3d 475, 479 (3rd
Cir. 2016).
The record in this case establishes that Young and several
other female employees complained to Little and the Union
about the way that Heben had treated them while at work. On
the day of the incident in this case, Young believed that Heben
had treated and spoken to her in a degrading and harassing man-
ner regarding her work, which upset her. Young immediately
reported that degrading treatment to Little. Little decided to ad-
dress the perceived mistreatment of Young at the time it oc-
curred, when both Young and Heben were present. The incident
at issue thus arose when Little, acting in his capacity as Chief
Union Steward, attempted to address those complaints about
working conditions with Heben. In the course of their interac-
tion, Heben denied any wrongdoing, and raised his voice and
pointed his finger at both Little and Young. Little admittedly
used profanity and then sought to end the meeting in the vesti-
bule by leaving and walking into the platform dock area. Yet
Heben pursued Little onto the platform, yelled at Young and
pointed his finger at them. Little responded with a discussion
that admittedly included the further use of profanity.
The Respondent argues in its brief that Heben had a legitimate
right to direct Young to leave on her route, citing its interest in
on-time departures for its customers, and it asserts that the inci-
dent “did not involve any legitimate dispute over employment
conditions” and it therefore was not a “grievance meeting” or
“for any concerted purpose.” (R. Br. 1.) The Respondent further
asserts that Little’s effort to meet with and confront Heben was
“not for any legitimate purpose.” (R. Br. 12.) Instead, the Re-
spondent argues that Little, for no apparent or articulated reason,
caused a confrontation with Heben to sabotage its operation and
prevent Heben from getting Young to depart on time. In this
connection, the Respondent asserts in its brief that Little “created
an unnecessary confrontation with Heben in an effort to prevent
Heben from trying to assist Young, or other drivers in the future,
to depart on time with their scheduled routes.” (R. Br. 12.) Like-
wise, Respondent claims that Little purposefully “disrupted and
delayed Greyhound’s operations.” (R. Br. 15.) These arguments,
however, lack merit as they have absolutely no basis in the rec-
ord.
While the Respondent’s interest in maintaining scheduled de-
parture times is not disputed, the way in which Heben addressed
the issue resulted in Young’s determination that Heben had mis-
treated her, pointed his finger at her, and spoke to her in a de-
grading manner as he had reportedly done in the past. Heben’s
actions caused Young’s complaint to the Union that she was be-
ing mistreated and harassed by management while she was per-
forming her work, which is clearly a condition of her work. Lit-
tle then met with Heben in his capacity as Chief Union Steward
to discuss the alleged mistreatment of Young. Contrary to Re-
spondent’s assertions, the evidence establishes that Little was en-
gaged in union activity when he confronted Heben on June 24.
Besides constituting union activity, Little was also engaged in
protected concerted activity. The Board has held that an em-
ployee’s conduct must be both “concerted” and engaged in for
the purpose of “mutual aid or protection” for it to be protected
under Section 7 of the Act. Fresh & Easy Neighborhood Market,
361 NLRB 151, 153 (2014). The Supreme Court held that Con-
gress did not intend to limit the protection of Section 7 of the Act
to situations “in which an employee’s activity and that of his fel-
low employees combine with one another in any particular way.”
NLRB v. City Disposal Systems, 465 U.S. 822, 835 (1984). The
Court also held that “mutual aid or protection” concerns “the
goal of concerted activity; chiefly, whether the employee or em-
ployees involved are seeking to ‘improve terms and conditions
of employment or otherwise improve their lot as employees.’”
Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). The “concert-
edness” and “mutual aid or protection” elements under Section 7
are analyzed under an objective standard, whereby motive for
taking the action is not relevant to whether it was concerted, nor
is motive relevant to whether it was for “mutual aid or protec-
tion.” Fresh & Easy Neighborhood Market, supra, slip op. at 3.
The Board defined concerted activity in Meyers Industries
(Meyers I), 268 NLRB 493 (1984), remanded sub nom. Prill v.
NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948
(1985), as activity “engaged in with or on the authority of other
employees, and not solely by and on behalf of the employee him-
self.” The Board clarified that definition of concerted activity in
Meyers II, 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB,
835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205
(1988), to include cases “where individual employees seek to in-
itiate or to induce or to prepare for group action, as well as indi-
vidual employees bringing truly group complaints to the atten-
tion of management.” Id. at 887.
In this case, Little’s actions sought to bring to management’s
attention the complaints from Young and other female employ-
ees about Heben’s demeaning and disrespectful treatment toward
them. Such treatment affects the conditions of employment of
those employees. Even though Little confronted Heben individ-
ually (but in the presence of Young), the Board has found that
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
such “ostensibly individual activity may in fact be concerted ac-
tivity if it directly involves the furtherance of rights which inure
to the benefits of fellow employees.” Anco Insulations, Inc., 247
NLRB 612, 613 (1980); see also Alleluia Cushion Co., 221
NLRB 999, 1000 (1975). I find that Little’s confrontation with
Heben over his alleged mistreatment of Young and other em-
ployees was for the purpose of protecting and furthering employ-
ees’ rights, and therefore under established Board law he was
engaged in concerted activity.
I further find that Little’s conduct was for the purpose of mu-
tual aid or protection. It is well established that the “mutual aid
or protection” clause encompasses “much legitimate activity [by
employees] that could improve their lot as employees.” Eastex,
437 U.S. at 567; Fresh & Easy Neighborhood Market, supra slip
op. at 5. Here, Little’s meeting with Heben concerning com-
plaints about his treatment of Young and other employees was in
furtherance of the mutual aid or protection of her and other em-
ployees’ rights to work in a safe and harassment free environ-
ment. Little’s actions were an attempt to protect the rights of
those employees, and therefore were actions related to improv-
ing the employees’ conditions of employment. See Asplundh
Tree Expert Co. v. NLRB, 365 F.3d 168, 172 at fn. 3 (3d Cir.
2004). In fact, Board precedent firmly establishes that employee
complaints about supervisors’ treatment of employees is directly
related to working conditions and constitutes protected concerted
activity. Calvin D. Johnson Nursing Home, 261 NLRB 289 fn. 2
(1982), enfd. 753 F.2d 1078 (7th Cir. 1985); Astro Tool & Die
Corp., 320 NLRB 1157, 1162 (1996).
b. Little’s actions were not sufficient to remove the protection
of Section 7 of the Act
The Board has recognized that normally, remarks made by
employees during meetings to resolve labor disputes or griev-
ances constitute protected activity, even though they may include
profanity or disrespectful language. Atlantic Steel Co., 245
NLRB 814, 819 (1979). In addition, the Board and courts have
observed that “passions run high in labor disputes and that epi-
thets and accusations are commonplace.” Atlantic Steel, supra at
819, quoting Crown Central Petroleum Corporation v. NLRB,
430 F.2d 724, 731 (1970). From a practical standpoint, the
Board has also noted that “some latitude must be given to partic-
ipants in these incidents. Indeed, although we might wish it oth-
erwise, it is unrealistic to believe that the principals involved in
a heated exchange can check their emotions at the drop of a hat.”
Postal Service, 251 NLRB 252, 252 (1980).
Under the principals of labor law, union representatives are
considered to stand upon an equal footing with management with
regard to resolving labor disputes, as such proceedings are “not
an audience, conditionally granted by a master to his servants,
but a meeting of equals—advocates of their respective posi-
tions.” Id. It is well established however, that although union
stewards enjoy protections under the Act when acting in a repre-
sentational capacity and such employees are permitted some lee-
way for impulsive behavior when engaged in protected activity,
that leeway is balanced against “an employer’s right to maintain
order and respect.” Piper Realty, 313 NLRB 1289, 1290 (1994);
Tampa Tribune, 351 NLRB 1324, 1325–1326 (2007). In this
case, the Respondent asserts it was justified in discharging Little,
consistent with that right to “maintain good order and discipline”
in its workplace. (R. Br. 23.)
When an employee engages in abusive or indefensible mis-
conduct during activity that is otherwise protected, the employee
forfeits the Act’s protection. DaimlerChrysler Corp., 344 NLRB
1324, 1329 (2005). The Board, however, has held that the stand-
ard is high for forfeiting the protection of the Act, stating that
protected conduct must be egregious or offensive to lose the pro-
tection it is provided. Consolidated Diesel, 332 NLRB 1019,
1020 (2000) (citations omitted), enfd. 263 F.3d 345 (4th Cir.
2001). In this regard, the Board has determined that “the manner
in which an employee exercises a statutory right must be extreme
to be beyond the Act’s protection.” Id. See also Trus Joist Mac-
millian, 341 NRLB 369, 371 (2004).
The Board has typically applied the analysis of Atlantic Steel
Co., 245 NLRB 814 (1979), to situations where face-to-face
workplace conversations have been alleged to infringe on em-
ployers’ rights to maintain workplace order, such as in the instant
case. In Atlantic Steel, the Board set forth the test for determin-
ing whether an employee loses the protection of the Act. Under
that test, the Board balances four factors: (1) the place of the dis-
cussion; (2) the subject matter of the discussion; (3) the nature of
the employee’s outburst; and (4) whether the outburst was, in any
way, provoked by the employer’s unfair labor practices. Id. at
816. This multifactor framework enables the Board to balance
employee rights with the employer’s interest in maintaining or-
der in its workplace. Triple Play Sports Bar & Grille, 361 NLRB
308, 311 (2014); See Plaza Auto Center, Inc., 355 NLRB 493,
494 (2010), enfd. in part 664 F.3d 286 (9th Cir. 2011), decision
on remand 360 NLRB 972 (2014).
As mentioned above, in this case Little’s conduct during the
incident consisted of several phrases directed at Heben in a
raised voice which included the words “damn,” “shit,” and
“fuck” (and several variations of “fuck”). Specifically, as Heben
yelled and point his finger at Young and Little, Little told Heben
that if the Respondent had assigned the “damn bus” they would
not be there, and that Young could have “gotten her shit and left.”
When Heben stated that Renee was in charge of the buses, Little
said “if Renee had did what she was supposed to damn do, then
we still wouldn’t be here.” When Heben continued “waiving his
finger” at Little while telling him to stop cursing, and pointed his
finger in Little’s face, Little stated that it was Greyhound’s
“fucking fault” that there was no bus available for Young to
drive, and he told Heben: “fuck you.” Little then ended the con-
versation with Heben as he and Young exited the vestibule area
and walked onto the loading dock platform. Heben followed,
yelled at Young, and engaged Little by telling him to stop swear-
ing and that he could not say whatever he wanted to say. Little
turned around to face Heben and told him that he could “say
whatever the fuck I want to say.” As Little spoke, he gestured
several time with his pointed finger on his right hand, swinging
it down and across his body.
In the instant case, an examination of the Atlantic Steel factors
reveals that Little’s alleged misconduct consisting of the use of
profanity along with his hand gestures, did not rise to the level
which would warrant losing the protection of the Act.
GREYHOUND LINES, INC. 19
(1) The place of the discussion
The first factor, “the place of the discussion,” weighs in favor
of finding that the conduct did not remove the protection of the
Act. The “discussion” or confrontation in this case took place in
two locations—in the vestibule and on the platform dock. First,
with regard to the initial confrontation in the vestibule, the Re-
spondent correctly points out that customers pass through the
vestibule when they move from the terminal area to the platform
loading area, and vice versa. However, the record establishes
that Little requested to meet with and talk to Heben while they
were in the vestibule, and Heben agreed to do so. In addition,
while the confrontation initially occurred in the vestibule, no
customers or other employees were present and none walked
through the vestibule area. In fact, the doors leading into the
terminal and the doors leading onto the dock remained closed
during the confrontation. Furthermore, there is no evidence that
any customers or employees saw the confrontation in the vesti-
bule area, heard the profanity that was used by Little, or regis-
tered complaints about what transpired in the vestibule. Thus,
there is no evidence that this portion of the discussion occurred
in the presence of employees, customers, or the public.
Little ended the discussion in the vestibule by walking away
with Young into the platform area. The record establishes that it
was Heben who changed direction from exiting the vestibule into
the terminal area, and instead turned to follow Little onto the
platform to cause the second phase of the confrontation in an area
where other employees were located, and where passengers were
on Young’s bus. While the confrontation on the dock lasted only
approximately 30 seconds and occurred near Young’s bus, there
is no evidence to establish how many people were on the bus or
whether they could hear what occurred. In fact, the record es-
tablishes that the door and windows on the bus were closed when
the incident occurred, and the Respondent did not receive any
complaints from the passengers regarding the confrontation. In
analyzing the “place of discussion factor,” the Board has consid-
ered whether the respondent’s customers were exposed to the al-
leged misconduct. Wal-Mart Stores, Inc., 341 NLRB 796, 808
(2004). In this case, the record is devoid of evidence establishing
that passengers on the bus witnessed or heard the incident, were
affected by it, or even registered complaints about it.
While the Respondent requested that employees Marlon Jack-
son and Melvin Flowers submit written statements about the con-
frontation on the dock, they merely stated that they heard an ar-
gument and the only thing they overheard was one person who
said “Don’t touch me,” and the other person respond “I didn’t
touch you.” (GC Exhs. 14 and 15.) Employee Zephaniah Law-
son, who also submitted a written statement to the Respondent
which does not reflect where he was when he allegedly saw the
confrontation, only stated that he saw Little “touch Jon [Heben]
on [the] shoulder. . . .” (R. Exh. 9.) Interestingly, none of those
statements mention the use of profanity, and the assertion that
Little touched Heben on the shoulder was not corroborated by
the video. Thus, there is no evidence that Little’s use of profan-
ity on the platform was mentioned or recognized by the three
employees who provided statements, nor is there evidence that
the use of profanity negatively affected or upset employees, or
that it in any way affected their work.
In assessing this factor, it is also important to note that Heben
was the one who pursued Little onto the platform and continued
to point is finger at him. The fact that Heben initiated the con-
frontation in an area open to the public where passengers and
employees were located, detracts from his standing to object and
complain that passengers and employees could have overheard
Little’s statements. In Brunswick Food & Drug, 284 NLRB 663,
665 (1987), the Board found that an employer unlawfully dis-
charged an employee, despite the fact that the patrons in the res-
taurant overheard the employee’s excited and prolonged com-
plaints about management as the employee jumped up from her
seat and paced around the customers. In that case, the Board
found the employee was provoked in front of customers, and it
held that “[i]n any event, the Respondent selected the setting for
this confrontation, and it is thus hardly in a position to object that
customers were drawn into it.” Id.
(2) The subject matter of the discussion
The second factor, the “subject matter of the discussion,”
weighs in favor of protection. Little was clearly acting in his
capacity as chief union steward when he asked to speak to Heben
about the way he was treating Young. In fact, even Heben
acknowledged that Little initiated the conversation for the pur-
pose of discussing Heben’s treatment of Young. (Tr. 539.) Lit-
tle’s statements directly involved Heben’s actions and their ef-
fects on Young’s and other employees’ working conditions. The
tenor of the conversation then changed because Heben denied
that he spoke inappropriately to Young or had harassed and mis-
treated her, and because he began to question Young regarding
her work procedures that day. The situation was then exacer-
bated by Heben pointing his finger in the faces of both Young
and Little, which was precisely one of the ways Young believed
Heben had mistreated and harassed her earlier. Little’s remarks,
while including the use of profanity in the form of “damn,”
“shit,” and “fuck,” were nevertheless expressions of protest and
outrage over what Little and Young viewed as mistreatment and
harassment.
(3) The nature of the employee’s outburst
The third factor, the nature of the conduct or the “outburst,”
also weighs in favor of protection. In assessing whether an em-
ployee’s protected conduct loses the protection of the Act, the
Board recognizes that disputes over working conditions are the
type most likely to cause ill feelings and strong responses. Kiewit
Power Constructors Co., 355 NLRB 708, 710 (2010), enfd. 652
F.3d 22 (D.C. Cir. 2011) citing Consumers Power, 282 NLRB
130, 132 (1986). The Board has held that in deciding whether
conduct is removed from the protection of the Act, it determines
whether the conduct is “so violent or of such serious character as
to render the employee unfit for further service.” St. Margaret
Mercy Healthcare Centers, 350 NLRB 203, 204–205 (2007),
enfd 519 F.3d 373 (7th Cir. 2008). In an attempt to distinguish
between protected conduct that maintains the Act’s protection
from that which is so egregious that it loses its protection, the
Board has found that a line “is drawn between cases where em-
ployees engaged in concerted activities that exceed the bounds
of lawful conduct in a moment of animal exuberance or in a man-
ner not motivated by improper motives and those flagrant cases
in which the misconduct is so violent or of such a character as to
render the employee unfit for further service.” Kiewit Power,
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
supra at 710, citing Prescott Industrial Products Co., 205 NLRB
51, 51–52 (1973).
In assessing the nature of Little’s outburst in determining
whether his protected conduct lost the protection of the Act, there
is no doubt that Little became confrontational in the course of
advocating Young’s cause after Heben provoked him by yelling
and pointing his finger in their faces. He also used profane lan-
guage and hand gestures that consisted of swinging his right
hand in front of his body with pointed finger for emphasis. His
hand gestures, while aggressive, were not threatening. I note that
his use of profanity, while certainly disrespectful, was not threat-
ening. Little’s comments to Heben did not contain threats, and
the Respondent failed to allege in Little’s discharge letter that he
had threatened Heben. In addition, the use of profanity was not
planned or deliberate, but instead was a spontaneous response to
being provoked by Heben. The record establishes that Little con-
fronted Heben with an intent to discuss the alleged harassment
and mistreatment of Young, not to direct profanity at him for no
apparent reason. I find his outburst and use of profanity was a
reaction to being provoked by Heben’s yelling and finger point-
ing, the exact actions which Young cited as evidence of his de-
grading and harassing behavior in the first place. The Board has
held that such statements which are “single, brief, and spontane-
ous reactions” by an employee and not “premeditated and sus-
tained personal threats. . .” are not sufficient to remove the pro-
tection of the Act from the protected activities. Kiewit Power,
supra at 710; see also Burle Industries, 300 NLRB 498 (1990),
enfd. 932 F.2d 958 (3d Cir. 1991).14
In addition, when analyzing the nature of the outburst, consid-
eration must be given to the undisputed fact that profanity was
commonplace in the Respondent’s workplace. Profanity, such
as that used by Little, was used by both employees and manage-
ment on a daily basis. It was frequently directed between em-
ployees, from employees to management and passengers, and
from management to employees and passengers. Such profanity
consisted of words such as: “damn,” “shit,” “bullshit,” “ass,”
“assholes,” “fuck,” or phrases such as “fuck Greyhound,” “fuck-
ing pay attention,” “get your shit together,” “full of shit,” “stop
fucking up,” “that’s a damn lie,” and “are you fucking serious?”
(Tr. 134–135, 137–138, 148, 208–212, 373–375, 450–452.) De-
spite the frequent and extensive use of profanity, the record is
devoid of any evidence that employees had been disciplined for
using profane language at the facility. In addition, I find it sig-
nificant that the use of profanity, such as the language used by
Little, was also commonplace and an accepted part of the many
conversations and confrontations that occurred between union
officials and Respondent’s management officials in labor-man-
agement meetings and when discussing working conditions or
grievances, which further weighs in favor of finding the protec-
tion of the Act should not be removed from Little’s actions in
this case. Consistent with that finding, the Board has held that
where the use of profane and vulgar language was “a daily oc-
currence in [the] Respondent’s workplace, and [it] did not en-
gender any disciplinary response,” such a factor weighed in

14 See in comparison Trus Joist MacMillan, 341 NLRB 369, 371
(2004), where the Board found that an employee lost the Act’s protection
favor of retaining the protection of the Act. Pier Sixty, supra,
slip op. at 2–3.
In this case, despite the fact that Little’s profanity included
“damn” and “shit,” the Respondent seems to have relied in par-
ticular on Little’s use of the word “fuck” and its variants for what
it described in the discharge letter as his “unrestrained use of
profanity,” his violation of the Hostility and Personal Conduct
rules, and his alleged “gross insubordination.” (Jt. Exh. 3.) In
that regard, the discharge letter specifically cited his use of that
word and phrases which included that word. (Jt. Exh. 3.) With
regard to such profanity, it is important to note that the Board has
found that the language used by Little is not so opprobrious as to
remove the Act’s protection. While certainly disrespectful and
discourteous, the Board has nevertheless found that such profane
language directed to or about management officials has not been
sufficient to remove the conduct from the protection of the Act.
In Alcoa, Inc., 352 NLRB 1222, 1225 (2008), the Board found
an employee acting in his union representational capacity, who
called a supervisor an “egotistical fucker,” did not lose the pro-
tection of the Act. In Tampa Tribune, 351 NLRB 1324 (2007),
where an employee engaged in protected activity told two super-
visors that the employer’s vice president was a “stupid fucking
moron,” the Board did not find that statement sufficient to re-
move the protection of the Act. In addition, in Plaza Auto Cen-
ter, Inc., 355 NLRB 493, 494–497 (2010), an employee engaged
in protected activity did not lose the protection of the Act despite
calling the owner a “fucking mother fucker,” a “fucking crook,”
and an “asshole” in a single and brief outburst of profanity. Id.
In that case, the Board noted that the single brief outburst was
provoked by the employer’s failure to respond to the employee’s
concerns, the profane language was “not outside the range of
conduct” at the employer’s facility, and there was no threat of
any physical harm by the employee. Id. See also Union Carbide
Corp., 331 NLRB 356, 359 (2000), enfd. 25 Fed. Appx. 87 (4th
Cir. 2001) (employee who called manager a “fucking liar” was
found not so “out of line” as to remove him from the protection
of the Act); see also, Pier Sixty, 362 NLRB 505, 506 (2015) (in
a Facebook posting the employee wrote that the employer’s as-
sistant director “is such a nasty mother fucker. . . fuck his mother
and his entire fucking family,” which did not lose the protection
of the Act).
In Postal Service, 364 NLRB No. 62 (2016), a similar case
involving confrontational protected conduct by a union steward,
the Board found a union steward’s conduct was protected during
a meeting concerning grievances, even though she became con-
frontational in the course of advocating for a fellow employee
and told the supervisor she was “being an ass,” and she “pep-
pered her language with profanity,” which included much use of
the word “fuck.” Id. slip op. at 2. As the supervisor ended the
meeting and stood up to leave, the employee stood up, tipping
her chair back in the process, and stepped toward the supervisor.
The employee then shook her finger at the supervisor and
screamed, “I can say anything I want. I can swear if I want. I
can do anything I want.” Id. When the supervisor began to dis-
agree with those statements, the employee took another step
where he planned and deliberately launched a personal attack on his su-
pervisor that included a series of profane verbal insults.
GREYHOUND LINES, INC. 21
towards the supervisor and loudly repeated that she could say
and do whatever she wanted, and added that the supervisor could
not stop her. That employee was subsequently issued a written
disciplinary warning based, in part, on her conduct in that inci-
dent.15 Id.
In the Postal Service case, the Board found, contrary to the
judge, that the employer violated the Act to the extent it disci-
plined the employee for her conduct during the course of that
incident. Id. When analyzing the nature of the outburst factor in
the Postal Service case, the Board noted that it has “repeatedly
held that strong, profane, and foul language or what is normally
considered discourteous conduct, while engaged in protected ac-
tivity, does not justify disciplining an employee acting in a rep-
resentative capacity.” Id., slip op. at 3; quoting Hawaii Tribune-
Herald, 356 NLRB 661, 680 (2011), enfd. 677 F.3d 1241 (D.C.
Cir. 2012) (citing cases); accord Noble Metal Processing, Inc.,
346 NLRB 795, 799 (2006). Applying its objective test to the
facts of that case, the Board found that the employee was not
threatening, but “merely loud, profane, disrespectful, and obnox-
ious,” which apparently was not unusual for that employee’s past
behavior or beyond the conduct the employer had previously tol-
erated. Postal Service, slip op. at 4. In that case, the Board de-
termined that the employee’s outburst retained the protection of
the Act. Id. I find the Postal Service case supports finding that
the nature of Little’s outburst retained the protection of the Act.
This finding is consistent with the Board’s reasoning that “a cer-
tain amount of salty language and defiance” is to be expected and
“must be tolerated” in disputes over employees’ terms and con-
ditions of employment. Id. slip op. at 4; Severance Tool Indus-
tries, 301 NLRB 1166, 1170 (1991), enfd. mem. 953 F.2d 1384
(6th Cir. 1992). In addition, the Board and the courts “have rec-
ognized that some tolerance is necessary if grievance meetings
are to succeed at all,” and “bruised sensibilities may be the price
exacted for industrial peace.” See United States Postal Serv. v.
NLRB, 652 F.2d 409, 411 (5th Cir. 1981) (internal quotation
marks and citations omitted).
In analyzing the nature of the outburst factor, the Respondent
argues that Little’s conduct and profanity violated its Hostility
and Personal Conduct Rules. However, the fact that his conduct
and statements may have violated the Respondent’s rules does
not necessarily mean that they lost the Act’s protection. The
Board has held that employees who are engaged in protected ac-
tivities “generally do not lose the protective mantle of the Act
simply because their activity contravenes an employer’s rules or
policies.” Crowne Plaza LaGuardia, 357 NLRB 1097, 1101
(2011), citing Louisiana Council No. 17, 250 NLRB 880, 882
(1980). In addition, even though the Respondent asserts that Lit-
tle was discharged for “gross insubordination,” that is not con-
sidered a separate and distinct basis for discipline requiring anal-
ysis under a framework other than that of Atlantic Steel. The

15 In the Postal Service case, the written warning issued to the em-
ployee was also for conduct that occurred on several days that followed
the incident, where the employee engaged in persistent “stalking” behav-
ior toward the supervisor, repeatedly calling the supervisor’s work and
cell phones, calling the supervisor a “fucking idiot,” and banging on her
office door, ultimately resulting in a court-issued protective order strain-
ing the employee from continuing her “harassing, stalking, or threaten-
ing” conduct. Id. at 6. The employee’s conduct after the incident also
record in this case establishes that Respondent characterized Lit-
tle’s outburst and his use of profanity during the incident as the
alleged act of insubordination. As I have determined above, Lit-
tle was engaged in union and protected concerted activity during
the incident. It is well established that if an employee is disci-
plined “for conduct that is part of the res gestae of protected con-
certed activities, the relevant question is whether the conduct is
so egregious as to take it outside the protection of the Act.” Goya
Foods, Inc., 356 NLRB 476, 477 fn. 11 (2011), citing Consumers
Power Co., 282 NLRB 130, 132 (1986) (footnote omitted).
Where the conduct at issue arises from protected activity, as it
has in the instant case, the Board does not consider such conduct
as a separate and independent basis for discipline. Id., see Tampa
Tribune, 351 NLRB 1324, 1326 fn. 14 (2007), enf. denied on
other grounds sub nom. Media General Operations, Inc. v.
NLRB, 560 F.3d 181 (4th Cir. 2009).
Furthermore, even though the Respondent characterized Lit-
tle’s use of profanity during his outburst as “gross insubordina-
tion,” such a characterization does not necessarily mean it is suf-
ficient to remove the Act’s protection. Although insubordinate
conduct weighs against protection under the Act, the Board dis-
tinguishes between “true insubordination” and behavior that is
only “disrespectful, rude, and defiant.” Goya Foods, Inc., supra
at 478; See Severance Tool Industries, 301 NLRB 1166, 1170
(1991), enfd. mem. 953 F.2d 1384 (6th Cir. 1992) (where the
Board found an employee’s “disrespectful, rude, and defiant de-
meanor and the use of a vulgar word” while engaged in protected
activity, was insufficient to cause him to lose the Act’s protec-
tion, notwithstanding the employer’s characterization of the con-
duct as “insubordinate, belligerent, and threatening”). I find that
in this case, Little’s conduct falls squarely into the latter category
and it did not constitute either “insubordination” or “gross insub-
ordination.” Accordingly, Little’s conduct retained its protection
under the Act.
Finally, the General Counsel correctly notes that the record is
replete with evidence of confrontations by both supervisors and
employees that did not result in termination. In that connection,
former supervisor Marshay Gibbons testified that there have
been confrontations and outbursts throughout the facility and
sometimes passengers were present. (Tr. 466.) Gibbons specifi-
cally testified that two supervisors (Jeff Fitzgerald and David
King) had an argument in the terminal in 2000 in view of the
public. (Tr. 464–465.) That confrontation ended with Fitzgerald
punching King in the face and the drivers and security personnel
separating them. Id. Both, however, continued to work for the
Respondent after that incident. Id. Gibbons also testified that she
had a verbal confrontation with driver Curtis Franklin around
2010 concerning his attempt to call off from work. (Tr. 455.)
That confrontation, which occurred in the driver’s room, con-
sisted of them yelling and cursing at each other. Id. Although
consisted of unprotected visits to the employer’s main office, which were
“unauthorized by the parties’ collective-bargaining agreement and only
tenuously, if at all, related to any bona fide representational purpose.” Id.
slip op. at 1, fn. 3. In that case, the Board affirmed the administrative
law judge’s finding that the employer did not violate the Act by issuing
written discipline for the employee’s conduct on those days that followed
the initial incident.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
she reported the incident to management, Franklin was not sus-
pended or terminated, and he continues to work for the Respond-
ent. (Tr. 458.) In addition, both Little and Gibbons testified that
in 2008, Little (who at the time was not a union steward) had a
verbal confrontation with Lytle at the public area of the facility
where Lytle followed him into the dock area and was yelling and
swinging his arms. (Tr. 154–157.) Gibbons also testified about
that altercation, stating that Little and Lytle were “getting into
it,” and that then chief shop steward Herman Green had to step
in to break up the altercation. (Tr. 158; 458–463.) Although Lit-
tle was initially pulled out of service for 6–7 days, he testified
that he eventually was not issued discipline and he was paid for
the time he was off work. (Tr. 159.)
In support of its assertion that Little’s outburst lost the protec-
tion of the Act, the Respondent cites DaimlerChrysler Corp.,
344 NLRB 1324, 1329–1330 (2005). In that case, employee
Valentin’s use of profanity directed toward a supervisor was not
protected even though profanity was common in the workplace,
because there was no evidence that “such language was com-
mon, much less tolerated, when used repeatedly in a loud ad
hominem attack on a supervisor that other workers overheard.”
Id. at 1329–1330. The facts of that case, however, are distin-
guishable from the instant case. In that case, the supervisor’s
conduct did not provoke Valentin’s ad hominem attack, where in
the instant case Little’s outburst was provoked by Heben’s yell-
ing and pointing his finger in the faces of Little and Young while
Little was engaged in union and protected activity. In addition,
the use of profanity was tolerated in the instant case, while in
DaimlerChrysler the use of such profanity was not tolerated. In
fact, the employer actually disciplined another employee for us-
ing profane language that had been directed to Valentin, and
there were no exceptions to the administrative law judge’s find-
ing that the employer lawfully disciplined Valentin only a month
after the incident at issue for conduct in a confrontation with an-
other supervisor that included “screaming, abusive language, in-
timidation, finger pointing, and temporarily blocking the [super-
visor’s] egress.” Id. at 1330, 1330 fn. 15.
DaimlerChrysler is also distinguishable from the instant case
because the place of the discussion weighed against protection
as it was Valentin who approached the supervisor at his cubicle
located in an area full of cubicles occupied by both supervisory
and nonsupervisory personnel, and “quite a few” employees
were in the immediate area where Valentin’s outburst was over-
heard by at least 3 people in an adjacent cubicle. Id. at 1329. In
the instant case, however, it was Heben who agreed to meet in
the vestibule and then cause the confrontation on the dock, both
public areas where other employees and customers had access.
In addition, in the instant case no other employees or customers
were present in the vestibule and there is no evidence that any
passengers on the bus heard the profanity used by Little or even
witnessed the confrontation. Furthermore, even though 3 em-
ployees allegedly witnessed Little’s outburst on the dock, two of
those employees only indicated they heard someone say “Don’t
touch me,” and someone else say “I didn’t touch you.” Addi-
tionally, the third person who allegedly witnessed the encounter
stated that he saw Little put his hand on Heben’s shoulder, which

16 R. Br. at 22.
is not supported by the record. Importantly, and contrary to the
facts of DaimlerChrysler, none of those three employees re-
ported hearing Little’s use of profanity, nor was there any evi-
dence that Little’s conduct interfered with any employee’s abil-
ity to perform their work. Thus, if find the Respondent’s reliance
on that case is misplaced.
(4) Whether the outburst was provoked by the Respondent
Finally, the fourth factor of whether the outburst was pro-
voked by the Respondent’s unfair labor practices also weighs in
favor of protection. As mentioned above, the record establishes
that Little’s outburst and use of profanity was provoked by
Heben’s actions both in the vestibule and after he followed Little
onto the platform. The Respondent’s argument that this factor
must weigh against retaining the protection of the Act because
Little’s outburst was “completely unprovoked” as “[n]o injustice
or unfair labor practice was committed at any relevant time
which would prompt such a reaction,”16 is without merit.
While it is true that the Heben’s yelling and pointing his finger
at Little and Young when confronted about his alleged harass-
ment and mistreatment of Young, was neither alleged nor found
to be an unfair labor practice, the Board has held that the absence
of such a finding does not require the conclusion that the em-
ployee’s conduct was unprovoked. Pier Sixty, supra, slip op. at
3, fn. 4; Battle’s Transportation, Inc., 362 NLRB 125, 125 fn. 4,
9–10 (2015). In Pier Sixty, supra, an employee posted vulgar
comments on Facebook about his manager, which was in re-
sponse to the employee being upset about the manner in which
the manager addressed employees during a dinner service they
were working. Id. In that case, on the issue of provocation, the
Board specifically found that “[t]he absence of a finding that [the
manager’s] conduct itself constituted an unfair labor practice
does not compel the conclusion that [the employee’s] conduct
was either unprovoked or unprotected.” Id. slip op. at 3 fn. 4. In
addition, in Battle’s Transportation, supra, the Board found that
the employer’s chief operating officer’s statement to the em-
ployee to “shut up,” although neither alleged nor found to be an
unfair labor practice, was “sufficient provocation” under an At-
lantic Steel analysis. See also Consumers Power, supra at 132
(employee engaged in protected activity did not lose the protec-
tion of the Act when he raised his fists in response to a manager’s
gesture that was neither alleged nor found to be an unfair labor
practice).
Thus, I find that all four factors of place, subject matter, nature
of conduct, and provocation, favor Little’s protection under Sec-
tion 7 of the Act. While I do not condone his use of profanity or
his confrontational and disrespectful conduct toward one of Re-
spondent’s management officials, under extant Board law his
conduct was not so egregious as to render his union and protected
concerted activities unprotected, nor was it sufficient to make
him unfit for further employment. Postal Service, 364 NLRB
No. 62 (2016).
2. The Respondent maintained and enforced unlawful work
rules in violation of Section 8(a)(1) of the Act, and even assum-
ing Little was not engaged in union and/or protected concerted
GREYHOUND LINES, INC. 23
activity, the Respondent discharged him pursuant to those un-
lawful rules, also in violation of Section 8(a)(1) of the Act.
a. The maintenance and enforcement of unlawful work
rules or policies
(1) The legal standard
The rights under Section 7 have been found to “necessarily
encompass[] the right effectively to communicate with one an-
other regarding self-organization at the jobsite.” Beth Israel Hos-
pital v. NLRB, 437 U.S. 483, 491 (1978). This includes em-
ployee communications regarding their terms and conditions of
employment. Central Hardware Co. v. NLRB, 407 U.S. 483, 491
(1978); Parexel International, LLC, 356 NLRB 516, 518 (2011).
As mentioned above, under Section 7, employees also have the
right to engage in activity for their “mutual aid or protection,”
which also includes communicating regarding their terms and
conditions of employment. Eastex, Inc. v. NLRB, 437 U.S. 556,
565 (1978). Thus, a core activity protected by Section 7 is the
right of employees to discuss, debate, and communicate with
each other regarding self-organization and their workplace terms
and conditions of employment. Consequently, the Board has
held that employees’ concerted communications regarding mat-
ters affecting their employment with other employees, their em-
ployer’s customers, or with other third parties such as govern-
mental agencies, are protected by Section 7 and, with some ex-
ceptions not applicable here, cannot lawfully be banned. See
Kinder-Care Learning Centers, 299 NLRB 1171, 1171–1172
(1990). The Board reasoned that prohibitions against employees
communicating with others such as third parties “reasonably
tends to inhibit employees from bringing work-related com-
plaints to, and seeking redress from, entities other than the Re-
spondent, and restrains the employees’ Section 7 rights to engage
in concerted activities for collective bargaining or other mutual
aid or protection.” Id. at 1172; see also Trinity Protection Ser-
vices, Inc., 357 NLRB 1382, 1383 (2011).
It is well established that an employer violates Section 8(a)(1)
of the Act if it maintains workplace rules that would reasonably
tend to chill employees in the exercise of their Section 7 rights.
Lutheran Heritage Village-Livonia, 343 NLRB 646, 646 (2004),
citing Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd.
203 F.3d 52 (D.C. Cir. 1999); Spring Valley Hospital Medical
Center, 363 NLRB No. 178 (2016); T-Mobile USA, Inc., 363
NLRB No. 171 (2016); Triple Play Sports Bar, 361 NLRB 308,
313 (2014); Hills & Dales General Hospital, 360 NLRB 611,
615 (2014). The analytical framework for determining whether
maintenance of rules violate the Act is set forth in Lutheran Her-
itage Village-Livonia, supra. Under Lutheran Heritage, a work
rule is unlawful if “the rule explicitly restricts activities protected
by Section 7.” 343 NLRB at 646 (emphasis in the original). If
the work rule does not explicitly restrict protected activities, it
nonetheless will violate Section 8(a)(1) if “(1) employees would
reasonably construe the language to prohibit Section 7 activity;

17 The Board’s decision in Flex Frac Logistics, LLC, supra, was sub-
sequently invalidated as a case decided by a panel that included two per-
sons whose appointments to the Board were not valid. See Noel Canning,
134 S.Ct. 2550 (2014). The Board has since found however, that reliance
on Flex Frac Logistics is appropriate because the panel’s decision was
(2) the rule was promulgated in response to union activity; or (3)
the rule has been applied to restrict the exercise of Section 7
rights.” Id. at 647.
In this case, the General Counsel does not allege that the rules
in question were promulgated in response to union activity, or
that they have been discriminatorily applied to restrict the exer-
cise of Section 7 rights. Rather, the General Counsel argues that
under the first prong of the test the challenged rules are over-
broad on their face such that employees would reasonably con-
strue the language in the rules at issue to prohibit their Section 7
activities.
In determining whether employees “would reasonably con-
strue the [rule’s] language to prohibit Section 7 activity,” the
Board adheres to certain guidelines in its analysis. The Board
will determine that an employer rule is overbroad “. . . when em-
ployees would reasonably interpret it to encompass protected ac-
tivities.” Triple Play Sports Bar & Grille, supra, slip op. at 7.
The Board has found that its “. . . task is to determine how a
reasonable employee would interpret the action or statement of
her employer, and such a determination appropriately takes ac-
count of the surrounding circumstances.” Roomstore, 357 NLRB
1690, 1690 fn. 3 (2011). The Board, in analyzing work rules,
“must give the rule a reasonable reading…,” and “refrain from
reading particular phrases in isolation, and… must not presume
improper interference with employee rights.” Lutheran Heritage
Village-Livonia, supra at 646. In addition, the Board does not
require that an employer actually apply a rule for it to be found
unlawful. “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 enforce-
ment.” Layayette Park Hotel, supra; see also Farah Mfg. Co.,
187 NLRB 601, 602 (1970), enfd. 450 F.2d 942 (5th Cir. 1971)
(the mere maintenance of the rule itself inhibits the engagement
in otherwise protected organizational activity and is not pre-
cluded by the absence of evidence that it was invoked).
An employer’s rule does not violate the Act if a reasonable
employee merely could conceivably read it as barring Section 7
activity. Rather, as stated above, the inquiry is whether a rea-
sonable employee would read the rule as prohibiting Section 7
activity. Id. Furthermore, any ambiguity in the rule must be con-
strued against the drafter of the rule, which in this case is the
Respondent. Flex Frac Logistics, LLC, 358 NLRB 1131, 1132
(2012), enfd. 746 F.3d 205 (5th Cir. 2014).17 This principle
stems from the Act’s goal of preventing employees from being
chilled in the exercise of their Section 7 rights, whether or not
such an effect on their rights is intended by the employer, instead
of being tasked with dispelling such chill once it is manifest. Id.;
See, e.g. Lafayette Park Hotel, 326 NLRB at 828.
(2) The Hostility Rule
Section 2 of the Rule Book, entitled “Driver Behavior and Im-
age,” contains a hostility rules set forth as follows:
enforced by the United States Court of Appeals for the Fifth Circuit prior
to the issuance of Noel Canning. 746 F.3d 205 (5th Cir. 2014). The
Board has also noted that there is no question regarding the validity of
the court’s judgment. T-Mobile, USA, Inc., 363 NLRB No. 171, slip op.
at 2, fn. 5 (2016); See also UPMC, 362 NLRB 1704 fn. 5 (2015).
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Rule 2-1 Hostility: Drivers may not take hostile or aggressive
actions, whether verbal, physical, by gesture, or otherwise, to-
wards the Company, its employees, patrons, vendors, or agents.
The use of vulgar language or profanity of any type will not be
tolerated.
Any complaints, criticisms or suggestions shall be made
through appropriate internal Company channels and shall not
be made to or in the presence of passengers or the public.
The General Counsel alleges that only the second provision in
this rule is unlawful, contending that the prohibition against
making “complaints, criticisms or suggestions . . . to or in the
presence of passengers or the public” would prohibit employees
from communicating with the public about problems or issues
relating to their wages or other terms and conditions of employ-
ment. In addition, the General Counsel alleges that requiring
employees to follow “certain internal channels” for making com-
plaints, criticisms or suggestions regarding working conditions,
would unlawfully inhibit them from bringing such work-related
complaints to other entities or the public for redress. (GC Br. 28–
29.) The Respondent, on the other hand, argues that when read-
ing both parts of the rule in context, a reasonable employee
would interpret the rule to prohibit hostile and aggressive con-
duct, and they would know the rule is not applicable to their Sec-
tion 7 rights. (R. Br. 27.) In addition, the Respondent argues that
requiring employees to bring complaints through “appropriate
internal company channels” should not be found overly broad
because “[a] reasonable employee would recognize the Union as
an ‘appropriate internal Company channel’ to bring complaints
about the terms and conditions of employment.” Id. I find no
merit to the Respondent’s assertions.
With regard to the Respondent’s assertion that employees
would somehow understand that the rule prohibiting complaints,
criticisms or suggestions in the presence of passengers or the
public would not include their complaints about working condi-
tions, I note that the rule does not present accompanying lan-
guage that would tend to restrict its application, and there is noth-
ing in the rule that even arguably suggests that protected com-
plaints about terms and conditions of employment are excluded
from the broad parameters of the rule. As such, employees
would reasonably conclude that the rule prohibits them from dis-
cussing their complaints, criticisms and suggestions about work-
ing conditions or engaging in certain protected communications
with the public.
Contrary to the Respondent’s assertion, I also find that em-
ployees would reasonably believe that in order to comply with
this rule, they would be required to present complaints or griev-
ances concerning their working conditions only to the “appropri-
ate internal Company channels” for resolution, and they would
be barred from presenting them to other entities such as govern-
ment agencies for redress. The rule is vague and ambiguous.
The Respondent does not identify the various “appropriate inter-
nal Company channels” that should be utilized. As mentioned
above, any ambiguity in the rule must be construed against the
drafter of the rule. Flex Frac Logistics, supra at 1132. In addi-
tion, even though the Respondent asserts that employees would
recognize the Union as an “internal Company channel,” that
assertion is baseless. Even assuming employees would believe
they were required to take every complaint about their working
conditions to the Union, they would still recognize that the Re-
spondent is prohibiting them from utilizing other methods to re-
solve such workplace issues, including discussing such issues
with one another, third parties, the public, or governmental agen-
cies such as the NLRB. By informing employees’ that they are
required to use an internal procedure to resolve their complaints
about working conditions, employees would reasonably construe
that as proscribing them from protesting or discussing their terms
and conditions of employment, which are clearly protected by
Section 7.
With regard to the ambiguities discussed above, it is important
to note that in determining whether employer pronouncements
violate Section 8(a)(1), the Supreme Court and the Board have
recognized the assessment “must be made in the context of its
labor relations setting,” and “must take into account the eco-
nomic dependence of the employees on their employers, and the
necessary tendency of the former, because of that relationship,
to pick up intended implications of the latter that might be more
readily dismissed by a more disinterested ear.” NLRB v. Gissel
Packing Co., 395 U.S. 575, 617 (1969). In Whole Foods Market,
363 NLRB No. 87, slip op. at 4 fn. 11 (2015), the Board held that
“[w]here reasonable employees are uncertain as to whether a rule
restricts activity protected under the Act, that rule can have a
chilling effect on employees’ willingness to engage in protected
activity. Employees, who are dependent on the employer for
their livelihood, would reasonably take a cautious approach and
refrain from engaging in Section 7 activity for fear of running
afoul of a rule whose coverage is unclear.”
While the Respondent’s policy does not expressly say that em-
ployees will be disciplined for making complaints outside the
unnamed internal channels, the Respondent’s rule goes beyond
merely stating a preference, as shown by the directive that em-
ployees’ criticisms “shall” be made through internal Company
channels. Such directive implicitly prohibits employees from
registering complaints or criticisms to other employees or enti-
ties, which is overly broad and unlawful. Hyundai America Ship-
ping Agency, Inc., 357 NLRB 860, 872 (2011); See also Kinder-
Care Learning Centers, supra at 1171–1172 (where the Board
found such a requirement “reasonably tends to inhibit employees
from bringing work-related complaints to, and seeking redress
from, entities other than the Respondent and restrains the em-
ployees’ Section 7 rights to engage in concerted activities for
collective bargaining or other mutual aid or protection.”)
In support of its assertion that the Hostility rule should not be
found to violate the Act, the Respondent relies on U-Haul Co. of
California, 347 NLRB 375, 378 (2006), where the Board found
lawful an employer’s statement in a rule advising that employees
see the employer’s president if they were unable to resolve work-
related complaints with their supervisors. That case, however, is
factually distinguishable. In that case, the handbook statement
informed employees that they were invited to “speak up for
[themselves]” at all levels of management, and assured the em-
ployees that the employer would listen. Id. In addition, the rule
stated that “[f]urthermore, you should understand that if your su-
pervisor cannot resolve your problems, you are expected to see
me [the employer’s president and chairman of the board].” Id.
GREYHOUND LINES, INC. 25
The Board found the statement that employees “can speak up for
yourself” invites, but does not require, the presentation of work-
place problems to management. Id. In addition, the Board found
that even if that statement could be read as a direction to employ-
ees to present their workplace issues to Respondent’s managers,
the handbook’s use of “expected” was not comparable to an ex-
plicit requirement to bring it to the president’s attention. Id. The
Board thus upheld the statement advising—but not requiring—
employees unable to resolve problems with supervisors to “see”
the president. Furthermore, the Board found nothing in the chal-
lenged statement that explicitly or through reasonable interpre-
tation prevented employees from complaining to customers or
nonsupervisory employees. Id. Those facts differ considerably
from the rule in the instant case, which states that complaints
“shall” be made through internal Company channels, thus estab-
lishing that employees were required to present their complaints
to the Respondent. Thus, I find that the Respondent’s mainte-
nance and enforcement of these provisions in this rule constitutes
a violation of Section 8(a)(1) of the Act.
(3) The Personal Conduct/Courtesy Rule
Section 2 of the Rule Book also contains a rule pertaining to
personal conduct and courtesy, which states as follows:
Rule 2-3 Personal Conduct/Courtesy: Drivers are expected
to conduct themselves as professionals. They must be pleasant
and courteous in dealing with passengers, regulatory or en-
forcement authorities, the public, agents and fellow employees.
Vulgar language, profanity or other rude behavior will not be
tolerated.
Drivers are expected to refrain from fighting, “horseplay,” or
any other conduct that may be dangerous to others. Conduct
by drivers that threatens, intimidates, challenges or coerces an-
other employee, a customer, or a member of the public will not
be tolerated.
To avoid an argument, where possible, the dispute shall be re-
ferred to a supervisor to resolve whatever problems exist.
Drivers will treat members of management with respect at all
times.
The General Counsel argues that the two portions of this rule
that prohibit employees from engaging in conduct that “chal-
lenges or coerces another employee,” and that which requires
employees to “treat members of management with respect at all
times,” are overbroad and violate the Act. The Respondent ar-
gues that, read in context, those two portions of the rule do not
violate the Act.
With regard to the prohibition against conduct that “chal-
lenges or coerces” other employees, the General Counsel asserts
it is too far-reaching as employees would reasonably read the
rule to prohibit employee discussion and interaction that is im-
plicit in Section 7. The Respondent argues that since the rule
reminds drivers that they are “expected to conduct themselves as
professionals” and prohibits “vulgar language, profanity or other
rude behavior,” it would take a “strained reading of this policy
to see how it could possibly . . . touch upon Section 7 activity.”
(R. Br. 28–29.) I find these assertions by the Respondent are
baseless and lack merit.
As mentioned above, an employer rule is unlawfully over-
broad when employees would reasonably interpret it to encom-
pass protected activities. Triple Play Sports Bar & Grille, supra,
slip op. at 7. The portion of this rule prohibiting conduct that
“challenges or coerces” other employees is vague and ambigu-
ous as it does not identify or clarify the challenging or coercive
conduct. Even though part of the rule addresses “fighting,”
“horseplay” or “any other conduct that may be dangerous to oth-
ers,” there is no language limiting challenging or coercive con-
duct to those examples. The broad restriction on such conduct
also fails to contain language that excludes Section 7 protected
activity from the rule’s prohibition. Prohibiting conduct that
“challenges or coerces” without further clarification is ambigu-
ous and overbroad, and employees would reasonably believe or
interpret this policy as proscribing protected activities such as
discussions or actions concerning their wages, hours, and work-
ing conditions that the Respondent may deem to be a “challenge”
to management or “coercive” to other employees. The Board has
found similarly ambiguous language to violate the Act. Hills &
Dales General Hospital, 360 NLRB 611 (2014) (where the
Board found prohibitions of “negative comments” and “negativ-
ity” overbroad and ambiguous by their own terms); Claremont
Resort & Spa, 344 NLRB 832, 832 (2005) (where the Board
found an employer rule prohibiting negative conversations about
associates or managers unlawful on its face); Tenneco Automo-
tive, 357 NLRB 953, 957–958 (2011) (where the Board found an
employer’s directing employees to refrain from saying anything
to each other that might be deemed offensive or “evoke a re-
sponse” would reasonably be construed by employees to refer to
a strike or other protected discussions). In addition, I note that
the Respondent’s assertion that employees would allegedly
know the prohibition against challenging or coercive conduct
would not be applicable to employees’ protected activities, is be-
lied by the fact that Respondent specifically applied this rule to
prohibit Little’s union and protected activities in this case. Thus,
the portion of the Respondent’s rule that prohibits conduct that
“challenges or coerces” other employees is overly broad and un-
lawful.
With regard to the portion of the personal conduct rule that
requires employees to treat members of management “with re-
spect,” the General Counsel argues that phrase is subjective and
vague, and therefore unlawful. The Respondent, on the other
hand, argues that since the rule addresses “fighting” and “con-
duct that is dangerous to others,” employees would not read the
rule to ban Section 7 activity. (R. Br. 29.) I similarly find no
merit to the Respondent’s assertions pertaining to this part of the
rule.
The portion of the personal conduct rule that requires employ-
ees to treat members of management “with respect” is vague and
patently ambiguous. It does not explain or define the conduct
which would be considered disrespectful, and it is subject to dif-
ferent meanings, including a reasonable belief that it would in-
clude employee conduct that is protected under Section 7 of the
Act. The rule also provides no descriptive context or illustrative
examples of the kind of conduct the Respondent would consider
to be disrespectful. As such, employees would have no way to
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gauge whether their conduct would be found by Respondent to
be subjectively disrespectful. The respectful treatment require-
ment is also set apart from the rule’s focus on professional con-
duct toward employees and the public and its prohibition on mis-
conduct, which would further cause employee uncertainty about
the kind of conduct the Respondent would determine to be dis-
respectful to its managers.
Similar policies or rules that are vague and ambiguous as to
their application to Section 7 activity, and which lack contextual
or limiting language that provide clarification to employees that
the rules do not restrict their Section 7 rights, have been found
unlawful. Casino San Pablo, 361 NLRB 1350 (2014); 2 Sisters
Food Group, Inc., 357 NLRB 1816 (2011). In Casino San
Pablo, the employer maintained a rule prohibiting insubordina-
tion or other “disrespectful conduct,” which included conduct
that failed “to cooperate fully with [s]ecurity, supervisors and
managers.” Id. slip op. at 2. In that case, the Board noted that in
the typical workplace setting where managerial prerogatives and
supervisory hierarchies exist, employees would reasonably un-
derstand that insubordination or “other disrespectful conduct”
would include protected conduct that might be deemed insuffi-
ciently deferential to management, such as employees acting in
concert to object to working conditions imposed by manage-
ment, collective complaints about a supervisor’s arbitrary con-
duct, or joint challenges to unlawful wages or working condi-
tions. Id. slip op. at 3; See 2 Sisters Food Group, Inc., supra at
1817 (where Board found unlawful a rule prohibiting the “ina-
bility or unwillingness to work harmoniously with other employ-
ees,” determining that rule was “sufficiently imprecise that it
could encompass any disagreement or conflict among employ-
ees, including those related to discussions and interactions pro-
tected by Section 7”); See also First Transit, Inc., 360 NLRB
619, 620–621 (2014) (where the Board found patent ambiguity
in the phrase “inappropriate attitude or behavior . . . to other
employees,” and that employees would reasonably construe that
rule as limiting protected communications concerning working
conditions and employment).
In addition, I note that the Board has recognized there have
been many cases where protected concerted activity has been
perceived by management and supervision as an affront to their
managerial authority and where employees were disciplined ac-
cordingly for engaging in such protected activity. Casino San
Pablo, supra, slip op. at 3; See e.g., Hawaii Tribune-Herald, 356
NLRB 661, 680 (2011); Noble Metal Processing, Inc., 346
NLRB 795, 800 (2006). Thus, I find this portion of the rule re-
quiring management to be treated with respect at all times is
overly broad and unlawful, as it would reasonably be interpreted
by employees to apply to their protected complaints about work-
ing conditions. I also note that is precisely what the Respondent
did in this case—it applied this rule to Little’s union and pro-
tected concerted activity to discharge him.
Thus, based on established Board law, I find the portions of
the Respondent’s Personal Conduct/Courtesy rule that prohibit
conduct that “challenges or coerces” other employees, and re-
quires employees to treat members of management “with re-
spect,” are ambiguous, overly broad, and unlawful, and their
maintenance and enforcement constitute a violation of Section
8(a)(1) of the Act.
(4) The Company Information Rule
Section 2 of the Rule Book also contains a rule pertaining to
the disclosure of company information, which states as follows:
Rule 2-7 Company Information: Drivers shall neither di-
vulge anything about the affairs of the Company to nor permit
access to Company records or reports by any party outside the
Company.
The General Counsel asserts this rule violates the Act because
it prohibits employees from discussing anything about the Re-
spondent to any outside parties. The Respondent denied in its
answer that it violated the Act by maintaining this rule, but it
failed to offer any argument in support of its position in its
posthearing brief.
While this policy does not expressly prohibit disclosure of
topics protected by the Act, it sets forth a broad prohibition
against divulging any information about the company or access
to company records or reports to outside parties. In that connec-
tion, the rule contains no language limiting the prohibition in any
way, it fails to offer any context with regard to the information
that is prohibited, it does not define or establish what Company
“affairs” are, and it does not establish what records or reports are
inaccessible to outside parties. Critically, there is no provision
exempting discussions about wages, hours, and other working
conditions, and there is nothing in the policy that even arguably
suggests that protected communications or documents are ex-
cluded from its parameters.
The blanket prohibition on disclosing company affairs is am-
biguous and overbroad as it fails to define or limit the impermis-
sible conduct, and I find that employees would reasonably be-
lieve this rule would prohibit protected communications, such as
those concerning employees’ terms and conditions of employ-
ment to outside parties or governmental agencies, such as the
NLRB. The Board has routinely found such blanket prohibitions
as overbroad and unlawful. Advance Transportation, 310 NLRB
920, 925 (1993) (where the Board found a rule prohibiting em-
ployees from discussion of “company affairs, activities, person-
nel, or any phase in operations with unauthorized persons” un-
lawful on its face); See also Fremont Mfg. Co., 224 NRLB 597,
603–604 (1976), enfd. 558 F.2d 889 (8th Cir. 1977) (a rule pro-
hibiting employees from “making any statement or disclosure re-
garding company affairs, whether expressed or implied as being
official, without proper authorization from the company” is an
unlawful restriction on employee rights).
In addition, under the ambiguous blanket prohibition against
permitting access to Company records or reports to parties out-
side of the Respondent, I find reasonable employees would be-
lieve that would apply to records or documents pertaining to
wages, hours, or other working conditions, such as personnel
documents. The Board has repeatedly held that nondisclosure
policies or rules prohibiting employees from disclosing em-
ployee personnel information or documents violates Section
8(a)(1) of the Act. The Board has reasoned that rules with such
restrictions are unlawfully overbroad because employees would
reasonably believe they were prohibited from discussing or oth-
erwise communicating with others concerning wages and other
terms and conditions of employment, which is an activity clearly
protected under Section 7 of the Act. In Quicken Loans, Inc.,
GREYHOUND LINES, INC. 27
361 NLRB 904 (2014), affirming 359 NLRB 1201 (2013), the
Board found unlawful a “Proprietary/Confidential Information”
rule prohibiting the disclosure of information defined as: (1)
“non-public information relating to or regarding…personnel”
and (2) “personnel information including, but not limited to, all
personnel lists, rosters, personal information of co-workers” and
“handbooks, personnel files, personnel information such as
home phone numbers, cell phone numbers, addresses, and email
addresses,” noting that the Board has found that rules prohibiting
employees from disclosing this type of information about em-
ployees violates the Act. 359 NLRB at 1201 fn. 3.
Similarly, in Flex Frac Logistics, LLC, 358 NLRB 1131, 1132
(2012), enfd. 746 F.3d 205 (5th Cir. 2014), the Board found that
an employer’s prohibition on “[d]isclosure” of “personnel infor-
mation and documents” to persons outside the organization was
unlawfully overbroad as it would reasonably be understood to
include “wages or other terms and conditions of employment
with nonemployees.” Id. at 1131. See e.g., IRIS U.S.A., Inc., 336
NLRB 1013, 1013 fn. 1, 1015, 1018 (2001) (where the Board
found an employer rule unlawful that stated information about
“employees is strictly confidential”); Cintas Corp. v. NLRB, 482
F.3d 463, 469–470 (D.C. Cir. 2007) (approving the Board’s find-
ing that a rule requiring employees to maintain “confidentiality
or any information concerning the company, its business plans,
its partners, new business efforts, customers, accounting and fi-
nancial matters” was unlawfully overbroad), enfg. 344 NLRB
943 (2005).
Base on the above, I find that the Respondent’s rule is overly
broad as employees would reasonably believe or interpret it as
proscribing discussions or disclosing documents about their
terms and conditions of employments, that the Respondent may
consider as confidential. Thus, the Respondent’s maintenance
of the provision discussed above in its Company Information
rule constitutes a violation of Section 8(a)(1) of the Act.
b. Little’s discharge pursuant to the unlawful Hostility and
Personal Conduct/Courtesy rules constituted a violation of
Section 8(a)(1) of the Act
The Board has long held that discipline imposed pursuant to
an unlawfully overbroad rule is unlawful (the “Double Eagle
rule”). See, e.g. Double Eagle Hotel & Casino, 341 NLRB 112,
112 fn. 3 (2004), enfd. 414 F.3d 1249 (10th Cir. 2005), cert. de-
nied 546 U.S. 1170 (2006). In The Continental Group, Inc., 357
NLRB 409 (2011), the Board clarified the Double Eagle rule by
holding that discipline imposed pursuant to an unlawfully over-
broad rule violates the Act when an employee violates the rule
by “(1) engaging in protected conduct or (2) engaging in conduct
that otherwise implicates the concerns underlying Section 7 of
the Act.” Continental Group, Inc., supra at 412. The Board
made it clear that the Double Eagle rule is applicable to situa-
tions where an employer disciplines an employee pursuant to an
overbroad rule for conduct “that touches the concerns animating
Section 7” (e.g., conduct that seeks higher wages) that is pro-
tected, but not concerted. Id. In making that determination, the
Board reasoned that the potential “chilling effect” on employees’
exercise of their Section 7 rights is even greater in those situa-
tions. Id.
However, the Board held that an employer will avoid liability
for discipline it imposes pursuant to an overbroad rule if it “. . .
can establish that the employee’s conduct actually interfered
with the employee’s own work or that of other employees or oth-
erwise actually interfered with the employer’s operations, and
that the interference, rather than the violation of the rule, was the
reason for the discipline.” Id; See also Switchcraft, Inc., 241
NLRB 985 (1979), enfd. 631 F.2d 734 (7th Cir. 1980). The em-
ployer has the burden of not only asserting this affirmative de-
fense, but also establishing that the employee’s interference with
the operation or production was the actual reason for the disci-
pline. The Double Eagle rule thus reflects the Board’s balancing
of employees’ Section 7 rights and employers’ legitimate inter-
ests in being able to establish work rules for purposes of main-
taining discipline and production. Id. at 412–413. Critically, an
employer’s mere citation to an overbroad rule as the basis for the
discipline will be insufficient to meet its burden of proof. Id. at
412. Therefore, if the employer provides the employee with a
reason (either oral or written) for imposing the discipline, the
employer “. . . must demonstrate that it cited the employee’s in-
terference with production and not simply the violation of the
overbroad rule.” Id.; See e.g. Gerry’s I.G.A., 238 NLRB 1141,
1151 (1978), enfd. 602 F.2d 1021 (1st Cir. 1979) (holding “It is
impossible, of course, for the employer . . . to establish [that the
employee was discharged based on interference with production]
when interference with work is not the reason given in the dis-
charge letter and the discharge letter instead is in the literal lan-
guage of the overly broad rule.”)
The record establishes that Little, acting in his capacity as
chief union steward, was engaged in conduct clearly within the
protection of Section 7 of the Act when he confronted Heben
about Young’s allegations of harassment and degrading treat-
ment. Little’s actions constituted union and protected concerted
conduct, and engagement in conduct that implicates the concerns
underlying Section 7. The evidence also establishes that Re-
spondent discharged him on the basis of that union and protected
concerted activity, and pursuant to the Respondent’s assertion
that his conduct constituted a violation of its overly broad Hos-
tility and Personal Conduct/Courtesy rules. In this case, there is
insufficient evidence to establish that Little’s confrontation with
Heben interfered with his work, the work of Respondent’s em-
ployees, or with Respondent’s operations. As mentioned above,
the Respondent argues in its brief that Little’s “unnecessary con-
frontation” with Heben was “an effort to prevent Heben from
trying to assist Young, or other drivers in the future, to depart on
time with their scheduled routes,” and that by doing so, Little
“disrupted and delayed Greyhound’s operations.” (R. Br. 12, 15.)
As also mentioned above, I have found those assertions to be
baseless and unsupported by the record.
Even assuming credit is given to Respondent’s assertion in the
discharge letter that Little’s decision to confront Heben “delayed
the passengers further by taking Young with [him] to confront
Manager Heben,” the record establishes that Heben agreed to
meet with Little and Young at that time. There is no evidence
that Heben informed Little or Young that he could not meet with
them because to do so would disrupt the Respondent’s opera-
tions. Likewise, there is no evidence that Heben asked to meet
with them at another time, or that he told Little that he would
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
have to meet with them at another time because to do so would
disrupt the operations. Furthermore, even if Little’s engagement
in union activity and protected conduct “delayed the passen-
gers,” it did not constitute a disruption to Respondent’s opera-
tions because Young completed her route as directed.18
In addition, even if sufficient evidence existed demonstrating
that Little’s conduct interfered with the Respondent’s operations,
there is no evidence that such interference was the reason for his
discharge. In this regard, the Respondent’s discharge letter es-
tablishes that the reason Little was discharged was his conduct
and use of profanity during the confrontation. (Jt. Exh. 3.) The
Respondent also failed to assert as an affirmative defense in its
answer to the complaint that Little’s conduct allegedly interfered
with its business operations. (GC Exh. 1(g).) The Respondent
also did not inform Little that he was being discharged on the
basis of alleged interference with its operations. Instead, Re-
spondent’s managers informed him that he was being discharged
on the basis of his conduct with Heben during the incident in
question.
Thus, the Respondent has not met its burden of establishing
that Little’s union and protected conduct interfered with its op-
erations, and even assuming such interference, it failed to meet
its burden of showing that interference with its operations was
the actual reason for the discharge. Accordingly, the Respond-
ent’s discharge of Little pursuant to its unlawful Hostility and
Personal Conduct/Courtesy rules constituted a separate violation
of Section 8(a)(1) of the Act.
3. Whether deferral to the grievance-arbitration process
is appropriate
The parties’ collective-bargaining agreement, effective from
April 1, 2013, to March 31, 2018, contains a grievance-arbitra-
tion procedure in Article G-8, that provides for a three-step
grievance procedure, and if the grievance is not resolved at Step
3, it can be submitted to an arbitration procedure that is “final
and binding.” (Jt. Exh. 1.) While the parties have processed Lit-
tle’s discharge grievance through Step 3 without resolution, the
grievance is now at the arbitration step where the General Coun-
sel asserts the Union has decided not to present it to an arbitrator,
and instead has insisted on a determination before the Board.
At the trial, the Respondent made a motion to defer this case
to the parties’ grievance-arbitration procedure, or in the alterna-
tive, to postpone the hearing while the arbitration proceeds. That
motion was opposed by the General Counsel. After considering
the matter, I denied the motion in its entirety at trial. (Tr. 12–16.)
In its posthearing brief, the Respondent renewed its assertion
that deferral is appropriate, arguing that there is no issue raised
in the complaint that is not proper for resolution by an arbitrator
within the process established by the parties in their collective-
bargaining agreement. (R. Br. 2–3, 32–34.) The General Coun-
sel, on the other hand, argues that this case is not appropriate for
deferral because the collective-bargaining agreement does not
encompass the entire dispute. In that connection, the General
Counsel argues that Respondent acted with animosity towards
Little’s union activity as the confrontation that led to Little’s

18 In addition, the record establishes that it was not uncommon for the
Respondent to experience delays in departures at its facility. In fact, the
Respondent asserted in Little’s discharge letter that “on time
discharge was based on his representation of a bargaining unit
employee, and that the contract does not speak to the lawfulness
of the Respondent’s work rules and its reliance on those rules to
justify Little’s discharge. (GC Br. 5.) I find merit in the General
Counsel’s arguments, and for the reasons stated below, I find that
deferral to the grievance-arbitration procedure is not appropriate.
It is well established that the Board has considerable discre-
tion in determining whether to defer to the arbitration process
when doing so will serve the fundamental aims of the Act.
Cooper Tire & Rubber Co., 363 NLRB No. 194, slip op. at 6
(2016); Wonder Bread, 343 NLRB 55 (2004), see Dubo Mfg. Corp.,
142 NLRB 431 (1963); Collyer Insulated Wire, 192 NLRB 837
(1971); and United Technologies Corp., 268 NLRB 557 (1984). The
Board’s standard for deferring to arbitration is also solely a mat-
ter for its discretion to resolve alleged unfair labor practices
where in its judgment its intervention is necessary for protection
of the public rights found in the Act, and Section 10(a) of the Act
expressly provides that the Board is not precluded from adjudi-
cating unfair labor practice charges even though they might have
been the subject of an arbitration proceeding and award. Babcock
& Wilcox Construction Co., 361 NLRB 1127, 1129–1130
(2014). The Board has found that the discretionary aspect of its
deferral policy is “particularly significant in 8(a)(3) and (1) cases
such as this, where employees’ contractual rights, implicated in
the grievance, are separate from their rights under the Act.” Id.
slip op. at 4. In addition, it is firmly established that the burden
of proving that deferral is appropriate is placed on the party urg-
ing deferral. Id. slip op. at 2.
In cases of prearbitral deferral, the Board’s standard is set
forth under Collyer Insulated Wire, 192 NLRB 837 (1971), and
United Technologies Corp., 268 NLRB 557 (1984). The Board
determined that prearbitral deferral is appropriate when the fol-
lowing factors are present: the dispute arose within the confines
of a long and productive collective-bargaining relationship; there
is no claim of employer animosity to the employees’ exercise of
protected statutory rights; the parties’ agreement provides for ar-
bitration of a very broad range of disputes; the arbitration clause
clearly encompasses the dispute at issue; the employer has as-
serted its willingness to utilize arbitration to resolve the dispute;
and the dispute is eminently well suited to such resolution.
United Technologies Corp., supra; Wonder Bread, supra at 55.
In Babcock & Wilcox Construction Co., 361 NLRB 1127
(2014), however, the Board made a change to its prearbitral de-
ferral standard. In Babcock, the Board revisited its deferral
standards in 8(a)(3) cases. In postarbitral cases, it revisited Olin
Corp., 268 NLRB 573 (1984), and found that the existing
postarbitral deferral standard did not adequately balance the pro-
tection of employee rights under the Act and the national policy
of encouraging arbitration of disputes concerning the application
or interpretation of collective-bargaining agreements. The
Board found that the Olin standard created an excessive risk of
deferral when an arbitrator had not adequately considered the is-
sue of the unfair labor practice, or when it was simply impossible
to determine whether that issue had been considered by the
performance” was “one of the largest complaints” from its customers.”
(Jt. Exh. 3.)
GREYHOUND LINES, INC. 29
arbitrator. In that case, the Board created a new standard for de-
ferring to arbitral decisions in 8(a)(3) and (1) cases, finding that
postarbitral deferral is appropriate where the arbitration proce-
dures appear to have been fair and regular, the parties agreed to
be bound, and the party urging deferral demonstrates that: (1)
the arbitrator was explicitly authorized to decide the unfair labor
practice issue; (2) the arbitrator was presented with and consid-
ered the statutory issue, or was prevented from doing so by the
party opposing deferral; and (3) Board law “reasonably permits”
the arbitral award. Id. slip op. at 5–10.
In Babcock, the Board also decided to change its prearbitral
deferral practices under Collyer and United Technologies, deter-
mining that it should not defer to the arbitral process unless the
first prong of the postarbitral deferral standard was satisfied, that
is, unless the arbitrator was explicitly authorized to decide the
unfair labor practice issue. Thus, the Board determined that it
will “no longer defer unfair labor practice allegations to the ar-
bitral process unless the parties have explicitly authorized the ar-
bitrator to decide the unfair labor practice issue, either in the col-
lective-bargaining agreement or by agreement of the parties in a
particular case.” Id. slip op. at 12–13.
In applying the prearbitral deferral standard articulated in Col-
lyer and United Technologies, the dispute clearly arose within
the confines of a long and productive collective-bargaining rela-
tionship; the parties’ agreement provides for arbitration of a very
broad range of disputes; and the employer has asserted its will-
ingness to utilize arbitration to resolve the dispute. An examina-
tion of the remaining factors, however, reveals that this dispute
is not well suited for resolution under the arbitral process. In that
connection, there is a claim of employer animosity to the em-
ployees’ exercise of protected statutory rights because the Gen-
eral Counsel has claimed, and I have so found, that Little was
discriminated against on the basis of his union and protected con-
certed activities. On that subject, the Board has noted that where
the facts show a sufficient degree of hostility towards its employ-
ees’ exercise of rights protected by the Act on the facts of the
case at bar alone, “there is serious reason to question whether we
ought defer to arbitration.” United Aircraft Corp., 204 NLRB
879, 879 (1972). In this case, the Respondent not only dis-
charged Little for his union and protected concerted activities
when he presented his concerns to management regarding a
driver’s belief that she was being harassed and demeaned by
Heben, it went so far as to fabricate its assertion that Little
punched Heben in the stomach in an attempt to justify its unlaw-
ful action. That, I find, demonstrates more than a sufficient de-
gree of hostility towards its employees’ exercise of rights pro-
tected by the Act.
Importantly, I also find that the arbitration clause does not
clearly encompass the dispute at issue. Article G-22 of the col-
lective-bargaining agreement provides that “no employee will be
discriminated against because of affiliation with or activity in the
Union,” article G-6 reserves to the Respondent the right to pre-
scribe “reasonable rules . . . not inconsistent with the terms of
this Agreement,” and article G-7 provides that Respondent can-
not discipline an employee without “just cause,” which includes
violations of Company rules . . . not inconsistent with this Agree-
ment. (Jt. Exh. 1.) However, the collective-bargaining agree-
ment does not address the lawfulness of Respondent’s work
rules, which is explicitly within the Board’s authority to deter-
mine, and it does not address discipline or discharge of an em-
ployee pursuant to unlawful work rules maintained and enforced
by the Respondent. Thus, under the final factor, the instant dis-
pute is not eminently well suited to resolution under the arbitral
process.
In addition, under the Babcock standard discussed above, the
arbitrator must be explicitly authorized by the parties to decide
the unfair labor practice issues, either in the collective-bargain-
ing agreement or by the parties’ agreement. In this case, the Un-
ion has refused to have an arbitrator decide the issues whether
the Respondent’s rules are overbroad and unlawful, and whether
Little’s discharge on the basis of, and resulting from, the enforce-
ment of those unlawful work rules violated the Act. The collec-
tive-bargaining agreement also fails to explicitly authorize an ar-
bitrator to decide those unfair labor practices issues. Thus, with-
out the express agreement of the Union and Respondent, an ar-
bitrator does not have the authority to determine those critical
unfair labor practice issues in this case, and the Babcock factor
required for prearbitral deferral has not been satisfied.
Finally, I find that the unfair labor practice allegations that the
Respondent maintained and enforced unlawful work rules, and
discharged Little pursuant to those unlawful rules, are inextrica-
bly intertwined with the General Counsel’s theories in this case,
and that deferral is not appropriate where only some, but not all,
of the unfair labor practice allegations can be processed in arbi-
tration. Sheet Metal Workers Local 17, 199 NLRB 166, 168
(1972), enfd., 502 F.3d 1159 (1st Cir. 1973); see also, Arvinmer-
itor, Inc., 340 NLRB 1035, 1035 fn. 1 (2003), citing American
Commercial Lines, 291 NLRB 1066, 1069 (1988) (Board found
when an allegation for which deferral is sought is “inextricably
related to other complaint allegations that are either inappropri-
ate for deferral or for which deferral is not sought, a party’s re-
quest for deferral must be denied.”)
Based on the record evidence in this case, and the well-estab-
lished Board law discussed above, I find that the Respondent
failed to satisfy the Board’s standards for prearbitral deferral un-
der Collyer, United Technologies, and Babcock. Accordingly,
deferral to the grievance-arbitration process is not appropriate,
and I find that the Respondent discharged Little for engaging in
union and protected concerted activities, in violation of Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Greyhound Lines, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and the Amalgamated Transit Union Local 1700
(the Union) has been a labor organization within the meaning of
Section 2(5) of the Act.
2. The Respondent has engaged in unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act by discharging
employee Louis Little on July 13, 2016, because of his engage-
ment in union and protected concerted activities, and in violation
of Section 8(a)(1) of the Act for also discharging Little on the
basis of, and pursuant to, unlawfully maintained and/or enforced
conduct rules or policies.
3. The Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act by maintaining at its
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cleveland, Ohio facility: (1) Rule 2-1 “Hostility,” which pro-
hibits employees from making complaints, criticisms, or sugges-
tions to or in the presence of passengers or the public, and which
requires employees to make any complaints, criticisms, or sug-
gestions through appropriate internal Company channels; (2)
Rule 2-3 “Personal Conduct/Courtesy,” which prohibits conduct
by employees that challenges or coerces another employee, and
requires that employees treat members of management with re-
spect at all times; and (3) Rule 2-7 “Company Information,”
which prohibits employees from divulging anything about the
affairs of the Company and prohibits permitting access to Com-
pany records or reports by any party outside the Company.
4. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent, having discriminatorily discharged Louis
Little, shall be ordered to offer him reinstatement to his former
position, or if that job no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority or any other
rights or privileges previously enjoyed, and to make him whole
for any loss of earnings and other benefits he may have suffered
as a result of the discrimination against him. As this violation
involves a cessation of employment, the make whole remedy
shall be computed on a quarterly basis, less any interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). In accordance with Don
Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101
(2014), the Respondent shall compensate Little for the adverse
tax consequences, if any, of receiving a lump-sum backpay
award. In addition, in accordance with AdvoServ of New Jersey,
Inc., 363 NLRB No. 143 (2016), the Respondent shall, within 21
days of the date the amount of backpay is fixed either by agree-
ment or Board order, submit and file with the Regional Director
for Region 8 a report allocating the backpay award to the appro-
priate calendar year for said employee. The Regional Director
will then assume responsibility for transmission of the report to
the Social Security Administration at the appropriate time and in
the appropriate manner.
In accordance with King Soopers, Inc., 364 NLRB No. 93
(2016), the Respondent shall also compensate Little for search-
for-work and interim employment expenses regardless of
whether those expenses exceed his interim earnings. Search-for-
work and interim employment expenses shall be calculated sep-
arately from taxable net backpay, with interest at the rate pre-
scribed in New Horizons, supra, compounded daily as prescribed
in Kentucky River Medical Center, supra. The Respondent shall
also be ordered to expunge from its files any and all references
to the discriminatory and unlawful discharge of Little, and notify

19 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
him in writing that this has been done and that evidence of the
discriminatory and unlawful action will not be used against him
in any way.
The General Counsel further requests that I order Little be re-
imbursed for “consequential economic harm” incurred by him as
a result of Respondent’s unlawful conduct. (GC Br. 36–42.)
However, the Board does not traditionally provide remedies for
consequential economic harm in its make-whole orders. See e.g.
Operating Engineers Local 513 (Long Const. Co.), 145 NLRB
554 (1963). While the General Counsel acknowledges that the
Board typically does not include such a remedy, he nevertheless
urges that if Little is unable to pay his mortgage or car payment
as a result of the unlawful discrimination against him, he should
be compensated for the “economic consequences that flow from
the inability to make payments,” such as late fees, foreclosure
expenses, repossession costs, moving costs, legal fees, and any
costs associated with obtaining a new house or car. (GC Br. 39.)
I am, of course, obligated to follow existing Board precedent in
resolving the issues present in this case. Pathmark Stores, Inc.,
342 NLRB 378, 378 fn. 1 (2004); Waco, Inc., 273 NLRB 746,
749 fn. 14 (1984). Accordingly, I deny the General Counsel’s
request for this additional remedy.
Finally, the Respondent shall be ordered to revise or rescind
Policy No. 2-1 “Hostility,” 2-3 “Personal Conduct/Courtesy,”
and 2-7 “Company Information” of its Driver’s Rule Book. This
is the standard remedy to assure that employees may engage in
protected activity without fear of being subjected to unlawful
rules. See Hills & Dales General Hospital, supra, slip op. at 2–
3; see also Guardsmark, LLC, 344 NLRB 809, 812 (2005), enfd.
in relevant part 475 F.3d 369 (D.C. Cir. 2007). As stated therein,
the Respondent may comply with the order of rescission by re-
printing Rules 2-1, 2-3, and 2-7 without the unlawful language
or, in order to save the expense of reprinting the whole policy
manual, it may supply its employees with policy handbook in-
serts stating that the unlawful rules have been rescinded or with
lawfully worded policies on adhesive backing that will correct or
cover the unlawful portions of the policies or the unlawfully
broad portions of the policies, until it republishes the policies
without the unlawful provisions. Any copies of the policies that
include the unlawful rules must include the inserts before being
distributed to employees. Hills & Dales General Hospital, supra,
slip op. at 3; Guardsmark, LLC, supra at 812 fn. 8; See also Bettie
Page Clothing, 359 NLRB 777, 778–779 (2013).
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended:19
ORDER
The Respondent, Greyhound Lines, Inc., Cleveland, Ohio, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Maintaining and/or enforcing rules or policies that: (1)
prohibit employees from making any complaints, criticisms, or
suggestions to or in the presence of passengers or the public, and
which require employees to make any complaints, criticisms, or
suggestions through appropriate internal Company channels; (2)
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
GREYHOUND LINES, INC. 31
prohibit conduct that challenges or coerces another employee,
and requires employees to treat members of management with
respect at all times; and (3) prohibits employees from divulging
anything about the affairs of the company and prohibits permit-
ting access to Company records or reports by any party outside
the Company.
(b) Discharging or otherwise discriminating against employ-
ees because they engage in union or protected concerted activi-
ties;
(c) Discharging or otherwise discriminating against employ-
ees pursuant to or on the basis of unlawful or overly broad em-
ployee rules or policies;
(d) In any like or related manner, restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days of this Order, revise or rescind employee
rules or policies that are overbroad, ambiguous, or otherwise
limit employees’ rights under the National Labor Relations Act
insofar as they: (1) prohibit employees from making any com-
plaints, criticisms, or suggestions to or in the presence of passen-
gers or the public, and which require employees to make any
complaints, criticisms, or suggestions through appropriate inter-
nal Company channels (as set forth in Rule 2-1 Hostility); (2)
prohibit conduct that challenges or coerces another employee,
and requires employees to treat members of management with
respect at all times (as set forth in Rule 2-3 Personal Con-
duct/Courtesy); and (3) prohibits employees from divulging an-
ything about the affairs of the company and prohibits permitting
access to Company records or reports by any party outside the
Company (as set forth in Rule 2-7 Company Information).
(b) Furnish all current employees with inserts for the current
employee conduct policies that: (1) advise employees that the
above-mentioned unlawful policies or rules have been rescinded,
or (2) provide employees with the language of revised lawful
policies or rules on adhesive backing that will cover the above-
mentioned policies; or (3) publish and distribute to employees
policies that do not contain the above-mentioned unlawful rules
or policies, or which contain or provide the language of lawful
rules or policies.
(c) Within 14 days from the date of this Order, offer Louis
Little full reinstatement to his former job, or if that job no longer
exists, to a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges previously enjoyed.
(d) Make whole Louis Little for any loss of earnings and other
benefits suffered as a result of his unlawful discharge and dis-
crimination against him, including any search-for-work and in-
terim employment expenses, in the manner set forth in the rem-
edy section of this decision.
(e) Compensate Louis Little for the adverse tax consequences,
if any, of receiving a lump-sum backpay award, and file with the
Regional Director for Region 8, within 21 days of the date the
amount of backpay is fixed, either by agreement or Board order,

20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
a report allocating the backpay award to the appropriate calendar
years for Louis Little.
(f) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Louis Little,
and within 3 days thereafter, notify said employee in writing that
this has been done and that the discharge will not be used against
him in any way.
(g) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including electronic copies of such records if stored in electronic
form, necessary to analyze the amount of backpay due under the
terms of this Order.
(h) Within 14 days after service by the Region, post at its fa-
cility in Cleveland, Ohio, copies of the attached notice marked
“Appendix.”20 Copies of the notice, on forms provided by the
Regional Director for Region 8, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has gone out
of business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since February 9,
2016.
(i) Within 21 days after service by the Region, file with the
Regional Director for Region 8 a sworn certification of a respon-
sible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C. July 21, 2017
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain and/or enforce rules or policies that:
(1) prohibit you from making any complaints, criticisms, or sug-
gestions to or in the presence of passengers or the public, and
which require you to make any complaints, criticisms, or sugges-
tions through appropriate internal Company channels; (2) pro-
hibit conduct that challenges or coerces another employee, and
requires you to treat members of management with respect at all
times; and (3) prohibits you from divulging anything about the
affairs of the Company and prohibits permitting access to Com-
pany records or reports to any party outside the Company.
WE WILL NOT discharge or otherwise discriminate against you
on the basis of, or pursuant to, unlawful, overly broad, or ambig-
uous employee rules or policies.
WE WILL NOT discharge or otherwise discriminate against you
for engaging in union or protected concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act, which are listed above.
WE WILL, within 14 days of the Board’s Order, revise or re-
scind employee rules or policies that are unlawful, overbroad,
ambiguous, or otherwise limit your rights under the National La-
bor Relations Act insofar as they: (1) prohibit you from making
any complaints, criticisms, or suggestions to or in the presence
of passengers or the public, and which require you to make any
complaints, criticisms, or suggestions through appropriate inter-
nal Company channels (as set forth in Rule 2-1 Hostility); (2)
prohibit conduct that challenges or coerces another employee,
and requires you to treat members of management with respect
at all times (as set forth in Rule 2-3 Personal Conduct/Courtesy);
and (3) prohibits you from divulging anything about the affairs
of the company and prohibits permitting access to Company rec-
ords or reports by any party outside the Company (as set forth in
Rule 2-7 Company Information), and WE WILL advise employees
in writing that we have done so and that the unlawful rules or
policies will no longer be enforced.
WE WILL furnish you with inserts for your current employee
conduct policies that: (1) advise you that the above-mentioned
policies have been rescinded, or (2) provide you with language
of lawful or revised policies on adhesive backing that will cover
the above-mentioned unlawful policies; or WE WILL publish and
distribute to you revised employee conduct rules or policies that
do not contain the above-mentioned unlawful rules, or provide
the language of the lawful policies or rules.
WE WILL, within 14 days from the date of the Board’s Order,
offer Louis Little full reinstatement to his former job, or if that
job no longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privileges pre-
viously enjoyed.
WE WILL make Louis Little whole for any loss of earnings and
other benefits resulting from his unlawful discharge, less any net
interim earnings, plus interest, including any search-for-work
and interim employment expenses he incurred as a result of his
unlawful discharge.
WE WILL compensate Louis Little for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards, and WE
WILL file with the Regional Director for Region 8, within 21 days
of the date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay awards to the ap-
propriate calendar years for Louis Little.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any references to the unlawful discharge
of Louis Little, and WE WILL, within 3 days thereafter, notify said
employee in writing that this has been done and that the dis-
charge will not be used against him in any way.
GREYHOUND LINES, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/08-CA-181769 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.