Philips Electronics North America Corporation

National Labor Relations Board - Board Decisions

Aug 14, 2014

361 N.L.R.B. 189 (N.L.R.B. 2014)

PHILIPS ELECTRONICS NORTH AMERICA 189
Philips Electronics North America Corporation and
Lee Craft. Case 26–CA–085613
August 14, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, JOHNSON, AND SCHIFFER
On June 13, 2013, Administrative Law Judge Margaret
G. Brakebusch issued the attached decision. The General
Counsel filed exceptions and a supporting brief. The
Respondent filed an answering brief, and the General
Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
The General Counsel alleged that the Respondent vio-
lated Section 8(a)(1) by (1) maintaining a rule that disci-
pline is confidential and prohibiting employees from
sharing or discussing their discipline with their cowork-
ers; and (2) discharging employee Lee Craft because of
his protected activity; specifically, sharing and discuss-
ing his discipline with his coworkers. The judge dis-
missed both of the allegations. As discussed below, we
reverse and find that the Respondent did maintain an
unlawful confidentiality rule.2
1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 There are no exceptions to the judge’s findings that Craft engaged
in protected activities and that the General Counsel met his initial bur-
den under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Mgmt. Corp., 462 U.S. 393 (1983), of showing that
those activities were a motivating factor in Craft’s discharge. The
judge then found that the Respondent established its affirmative de-
fense under Wright Line by showing that it would have discharged
Craft even in the absence of his protected activities. For the reasons
stated by the judge, we agree with this finding, and we adopt her dis-
missal of the allegation that the Respondent violated Sec. 8(a)(1) by
discharging Craft. No party contends that Wright Line is not the appro-
priate analysis here. After the judge concluded her Wright Line analy-
sis, however, she went on to find that Craft’s discharge was also lawful
under NLRB v. Burnup & Sims, 379 U.S. 21 (1964). Assuming arguen-
do that Burnup & Sims is applicable here, we agree that a violation
would not be established under that standard, either.
Because no exceptions were filed to the judge’s finding that the
General Counsel met his initial burden under Wright Line, Member
Schiffer observes that there is no need to address the judge’s reliance
on American Gardens Management, 338 NLRB 644, 645 (2002). See
Mesker Door, 357 NLRB 591, 592 fn. 5 (2011).
I. FACTS
Craft worked for the Respondent for several years.
During his tenure with the Respondent, he received nu-
merous oral and written warnings—as well as a demo-
tion—for performance deficiencies and acts of miscon-
duct, including repeatedly harassing and intimidating his
coworker, Kim Coleman. On January 16, 2012,3 the
Respondent decided to discharge Craft for his disruptive,
intimidating, and offensive behavior toward Coleman
and others. After looking into the matter further, howev-
er, the Respondent determined that, for administrative
reasons, it had to give Craft a final written warning in-
stead of discharging him.
On January 20, the Respondent gave Craft a final writ-
ten warning citing Craft for inappropriate behavior, vio-
lation of company policy/procedures, and unsatisfactory
performance. More specifically, the warning stated that
Craft had engaged in “highly disruptive behavior” during
preshift meetings and “harassing and intimidating con-
duct” towards colleagues and management. The warning
also stated that several employees reported feeling
“threatened” by Craft. Finally, the warning referred to
two recent performance deficiencies and stated that if
Craft engaged in any further inappropriate behavior, the
Respondent would terminate him immediately. In addi-
tion to issuing Craft this warning, the Respondent trans-
ferred him to another department and instructed him to
stay away from Coleman’s work area.
Four days later, employees Coleman and Thelma Hal-
bert notified the Respondent that Craft had violated the
stay-away instruction and had engaged in acts of disrup-
tion and harassment. Specifically, Coleman told Re-
spondent’s Regional Distribution Center Manager Sherry
McMurrian that Craft drove his forklift into Coleman’s
work area and, while seated 10 feet away from Coleman,
directed various comments toward her. Coleman also
reported that Craft showed his disciplinary warning to
other employees and loudly stated that he had received
the warning because of Coleman’s harassment allega-
tions. Other employees confirmed that Craft had shared
his disciplinary warning with them.
To document her conversations with Coleman and oth-
er employees, McMurrian prepared a file summary dated
January 24. In relevant part, the file summary states that
Coleman and Halbert reported to McMurrian that Craft
was showing his disciplinary form to employees, and that
Craft told other employees that he had been disciplined
based on Coleman’s accusations that he had harassed
her. McMurrian wrote, “These employees are aware that
disciplinary forms are confidential information and
3 All dates refer to 2012.
361 NLRB No. 16

190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
should not be shared on the warehouse floor, at any time,
much especially [sic] during working hours.” She added,
“Kim [Coleman] stated that [Craft] was purposely show-
ing the write-up which he knows is confidential infor-
mation. . . .”
On January 25, the Respondent discharged Craft and
provided him with a discharge notice that states:

Lee Craft is being terminated effective immediately
due to disrupting the operation and sharing confidential
documentation and information during working hours
and continu[ing] to use intimidating language towards
management. Lee received a final written disciplinary
notice warning against these exact behaviors on
1/20/12. Lee requested a copy of the write up and was
informed of the confidentiality of the discussion and
form during the meeting.

II. DISCUSSION
The General Counsel alleged that the Respondent,
since January 19, has unlawfully maintained a rule that
discipline is confidential and that prohibited employees
from discussing their discipline with their coworkers.
The General Counsel based his allegation on language in
the above-mentioned file summary and discharge notice,
contending that those documents demonstrate that such a
rule dithatd in fact exist and was therefore being unlaw-
fully maintained, even though the Respondent had never
formally promulgated such a rule.4
The judge found the General Counsel’s argument in
support of the allegation unpersuasive. First, the judge
determined that, even though the file summary referred
to Craft’s showing his disciplinary warning to some of
his fellow employees, McMurrian included this infor-
mation not because the Respondent prohibits discussion
of discipline, but because Coleman was disturbed that
Craft was broadcasting his warning to others and blam-
ing her for it. Next, the judge found equally unpersua-
sive the references to confidentiality in the January 25
discharge notice. Here, the judge found that Craft raised
the issue of confidentiality, and that the Respondent as-
sured him that it would maintain the warning’s confiden-
tiality. The judge also observed that the Respondent did
not tell Craft that he could not discuss his discipline with
others. Thus, the judge essentially found that McMurrian
added the reference to confidentiality in the January 25
discharge notice merely to reflect that Craft had been
assured of the confidentiality of the January 20 warning,
4 The Respondent does not have a written policy stating that disci-
pline is confidential or prohibiting employees from discussing or shar-
ing their discipline with their coworkers. McMurrian testified that such
a rule does not exist.
and that the reference was therefore not evidence of a
rule prohibiting employees from discussing their disci-
pline. In sum, the judge found that the wording in the
file summary and discharge notice was insufficient to
establish that the Respondent “told employees . . . that
they were prohibited from sharing and/or discussing their
discipline with coworkers as alleged in [the] complaint
. . . .”
We reverse the judge’s dismissal of this allegation. As
the Board has previously stated, “[i]t is important that
employees be permitted to communicate the circum-
stances of their discipline to their co-workers so that their
colleagues are aware of the nature of discipline being
imposed, how they might avoid such discipline, and mat-
ters which could be raised in their own defense.” Veri-
zon Wireless, 349 NLRB 640, 658 (2007). An employer
violates Section 8(a)(1) when it prohibits employees
from speaking with coworkers about discipline and other
terms and conditions of employment absent a legitimate
and substantial business justification for the prohibition.
See, e.g., Lucky Cab Co., 360 NLRB 271, 277 (2014);
SNE Enterprises, 347 NLRB 472, 491–492 (2006), enfd.
257 Fed.Appx. 642 (4th Cir. 2007); Caesar’s Palace,
336 NLRB 271, 272 (2001).
The General Counsel argues that the judge’s analysis
of the file summary and discharge notice was mistaken.
We agree and find that, notwithstanding the fact that the
Respondent did not have a written rule about discussing
discipline, language in the file summary and the dis-
charge notice, reasonably construed, establish that the
Respondent was unlawfully maintaining a rule prohibit-
ing employees from discussing their discipline.
First, by her language in the file summary of January
24, McMurrian effectively admitted the existence of such
a rule. McMurrian wrote, “These employees are aware
that disciplinary action forms are confidential and should
not be shared on the warehouse floor at any time . . . .”
Even if, as the judge found, Coleman raised the issue of
confidentiality with McMurrian, McMurrian refers here
to a prohibition that both already existed and applied to
“forms” in general—if only in the mind of management.
See Jeannette Corp. v. NLRB, 532 F.2d 916, 919 (3d Cir.
1976) (enforcing the Board’s finding that an “unwritten
policy apparently framed only in the minds of the com-
pany officials” was unlawful). There would be nothing
for employees to be “aware” of if the Respondent were
not maintaining such a rule, nor would Respondent have
referred to “forms” in general unless there were a gener-
alized rule relating to those forms. McMurrian also re-
ferred to Coleman’s report that Craft was purposely
showing the write-up to other employees even though he
knew it was confidential. This also suggests that the Re-

PHILIPS ELECTRONICS NORTH AMERICA 191
spondent was maintaining a rule prohibiting such con-
duct.
In addition, the January 25 discharge notice referred to
Craft’s sharing the confidential warning as one of the
reasons for his discharge. This indicates that the Re-
spondent believed that Craft had breached an existing
rule against such behavior.5 It is difficult to see how the
Respondent can claim that such a rule did not exist and at
the same time cite Craft for violating it. In sum, we find
that the Respondent maintained an unwritten rule that
discipline was confidential and that prohibited employees
from discussing discipline on the warehouse floor at any
time, and that this rule violated Section 8(a)(1).
ORDER
The National Labor Relations Board orders that the
Respondent, Philips Electronics North America Corpora-
tion, Memphis, Tennessee, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Maintaining a rule that discipline is confidential
and prohibiting its employees from discussing or sharing
their discipline with their coworkers.
(b) 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 after service by the Region, post at
its Memphis, Tennessee facility copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 26,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
5 Our colleague contends in his partial dissent that McMurrian mere-
ly documented what Coleman told her—i.e., McMurrian’s “observation
was based exclusively on a statement by employee Coleman, who
advised McMurrian that discipline forms are confidential and should
not be shared with others.” We note, however, that the fact that Cole-
man believed the Respondent maintained such a policy and that
McMurrian never took the opportunity to correct this belief further
supports a finding that the Respondent was maintaining an unlawful
confidentiality policy.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since January 2012.
(b) Within 21 days after service by the Region, file
with the Regional Director for Region 26 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.

MEMBER MISCIMARRA, dissenting in part.
I agree with my colleagues that employee Lee Craft’s
discharge did not violate the Act. However, I would also
affirm the judge’s dismissal of the allegation that the
Respondent maintained a rule prohibiting employees
from discussing their discipline with their coworkers. It
is undisputed that the Respondent has no written rule
prohibiting employees from discussing their discipline.
Respondent’s manager McMurrian testified that the Re-
spondent does not have such a rule in any form, and the
General Counsel failed to present any witness who con-
tradicted this testimony.
Contrary to the arguments presented by the General
Counsel and accepted by my colleagues, I do not believe
we can reasonably infer the existence of such a rule from
(a) language in the Respondent’s January 24 file sum-
mary stating that employees “are aware” that discipline is
confidential, and (b) language in Craft’s discharge notice
mentioning that Craft shared “confidential documenta-
tion” with others. In my view, this evidence fails to es-
tablish that the Respondent maintained a confidentiality
rule.
My colleagues note that the file summary was pre-
pared by Distribution Center Manager Sherry McMurrian
to document her conversations with one of Craft’s co-
employees, Kim Coleman, among others. Although
McMurrian’s summary stated “employees are aware that
disciplinary action forms are confidential,” the credited
evidence reveals (and the judge found) this observation
was based exclusively on a statement by employee
Coleman, who advised McMurrian that discipline forms
are confidential and should not be shared with others. At
the hearing, Coleman testified that no one ever told her
that discipline was confidential—this was only her as-

192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sumption. Moreover, when Coleman told McMurrian
that she (Coleman) believed that Craft was revealing
confidential information, the record reveals that McMur-
rian did not state or confirm that disciplinary information
was confidential. Rather, after being informed of Craft’s
disclosure, McMurrian simply asked, “Why would he
want to do that?” It is also relevant that, when Craft was
given a final written warning for engaging in “highly
disruptive” behavior and for harassing and intimidating
others, including Coleman, Craft was not told the disci-
pline was “confidential.” However, he was lawfully
transferred to another department and was directed to
stay away from Coleman’s work area (indeed, he was
told not even to look toward the area where Coleman was
working), and Craft undisputedly disobeyed the “stay
away” instruction. Although Craft showed his final
warning to co-employees, he advised several of them that
he received the warning because of Coleman’s com-
plaints, and he stated that he was “untouchable” (while
parked in his forklift about 10 feet away from Coleman).
None of these facts suggest that Respondent maintained
or enforced a rule against the disclosure of disciplinary
information, but they clearly establish that Coleman—
who was Craft’s co-employee and the object of his re-
peated harassment—had ample justification to advise
McMurrian that Craft was inappropriately disclosing
“confidential” information.
The discharge notice contained two references to “con-
fidential” information, but the content of the notice—
when considered in conjunction with relevant events—
likewise fails to establish that Respondent had a rule that
prohibited employees from disclosing information about
discipline they received. The notice stated:

Lee Craft is being terminated effective immediately
due to disrupting the operation and sharing confidential
documentation and information during working hours
and continu[ing] to use intimidating language towards
management. Lee received a final written disciplinary
notice warning against these exact behaviors on
1/20/12. Lee requested a copy of the write up and was
informed of the confidentiality of the discussion and
form during the meeting.

(Emphasis added.) As noted previously, and as the judge
found, Coleman (the co-employee) communicated her be-
lief to Respondent that Craft’s final warning was confiden-
tial. The evidence also establishes that Craft engaged in a
highly objectionable, egregious course of conduct that in-
cluded publicly blaming Coleman for his disciplinary warn-
ing arising from Coleman’s well-founded complaints about
Craft. Although the discharge notice may have been impre-
cise when describing Craft’s course of conduct as “sharing
confidential documentation and information,” this summary
fairly describes Craft’s objectionable actions, and does not
establish that Respondent had a policy or rule imposing a
blanket prohibition against disclosing discipline. To the
contrary, as the judge found, “Craft specifically denied that
he was told in the meeting that the disciplinary form was
confidential,” and Craft “did not testify that McMurrian or
any of the managers told him that he could not discuss his
discipline.” As to the final sentence in the discharge no-
tice—that Craft “requested a copy of the write up and was
informed of the confidentiality of the discussion and form
during the meeting”—the judge found, based on the credit-
ed testimony, that these were Respondent’s assurances to
Craft, at Craft’s request, that the disciplinary warning
would remain confidential. Also, in a sworn affidavit, Craft
testified that he was not aware of any policy or rule that
prohibits an employee from discussing discipline with other
employees.
In short, this case involves a lawful decision to termi-
nate Craft’s employment, based on a course of egregious
harassment and intimidating conduct directed towards
co-employees and management representatives. Accord-
ing to the testimony of the discharged employee himself,
Respondent maintained no rule prohibiting the disclosure
of discipline, and the employee had never been told he
was prohibited from disclosing his discipline to others.
At most, the record reveals that the Respondent prepared
two documents—an internal file summary memo and
Craft’s discharge notice—that made general, imprecise
references to “confidential” documentation. Neither of
these documents was prepared for distribution to em-
ployees generally. Moreover, the judge made specific
credibility findings establishing that the “confidential”
references in these documents had nothing to do with any
rule prohibiting the disclosure of discipline. Not only
does the record reveal that Craft engaged in highly objec-
tionable conduct, the evidence reveals that Respondent
went to significant lengths to act appropriately in relation
to Craft’s co-employees and even Craft himself (who
received repeated counseling and progressive discipline,
including assurances that the Respondent would refrain
from indiscriminately disclosing information regarding
Craft’s discipline). In these circumstances, we need
more record evidence than exists in the instant case to
establish that Respondent maintained or imposed some
type of prohibition that constituted restraint, coercion or
interference with protected rights.
Accordingly, as to this issue, I respectfully dissent.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PHILIPS ELECTRONICS NORTH AMERICA 193
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 behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain a rule that discipline is confi-
dential and that prohibits employees from discussing or
sharing their discipline with their coworkers.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.

PHILIPS ELECTRONICS NORTH AMERICA
CORPORATION

The Board’s decision can be found at
www.nlrb.gov/case/26–CA–085613 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.

William T. Hearne, Esq., for the General Counsel.
Mason C. Miller, Esq., of Somerset, New Jersey, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
This case was tried in Memphis, Tennessee, on March 11 and
12, 2013. Lee Craft, an individual, filed the charge in 26–CA–
085613 on July 19, 2012, and filed an amended charge on Sep-
tember 28, 2012. On November 30, 2012, the Acting Regional
Director for Region 26 of the National Labor Relations Board
(Board) issued a complaint1 and notice of hearing. Generally,
the complaint alleges that since January 19, 2012, Philips Elec-
tronics, North America Corporation (Respondent) has main-
tained a rule that discipline is confidential and prohibiting em-
ployees from sharing and/or discussing their discipline with
their coworkers. The complaint further alleges that Respondent
terminated Lee Craft (Craft) on January 25, 2012, because he
showed and discussed with his coworkers an employee coun-
seling form that he received from Respondent on January 20,
2012.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel2 (General Counsel) and the
Respondent, I make the following
FINDINGS OF FACT
During the 12-month period ending October 31, 2012, Re-
spondent sold and shipped goods valued in excess of $50,000
directly to points located outside the State of Tennessee. Dur-
ing the same 12-month period, Respondent purchased and re-
ceived goods in excess of $50,000 directly from points outside
the State of Tennessee. Respondent admits and I find, that at
all material times, Respondent has been an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the
National Labor Relations Act (the Act).
Alleged Unfair Labor Practices
A. Background
Respondent’s Southeast Regional Distribution Center in
Memphis, Tennessee, employs approximately 52 employees
and serves as a distribution center for Philips Lighting products.
In addition to its regular employees, Respondent also utilizes
approximately 48 temporary employees through Adecco, a
temporary service. Employees are assigned to one of four de-
partments; Ballast, Professional, Consumer, and Receiving.
Respondent’s Memphis operations are directed by Regional
Distribution Center Manager Sherry McMurrian. During the
relevant time period, Gerak Guyot served as Respondent’s op-
erations manager and Rolita Turner, Joe Odum, and William
Gibson were supervisors at Respondent’s facility.
All of Respondent’s human resources responsibilities for the
Memphis facility are handled by Respondent’s corporate office
in Somerset, New Jersey. Specifically, Palak Dwivedi in Re-
spondent’s corporate office dealt with the Memphis human
resources issues during the relevant time period.
B. Relevant Facts
1. Craft’s work history
Craft was hired at Respondent’s facility as a material handler
in February 2003. With the exception of the last 5 days of his
employment, Craft was assigned to the Ballast Department. In
April 2010, Craft was promoted to a lead position where he was
supervised by Gene Blinstrup. Rolita Turner also began her
work with Respondent as a warehouse worker and she was
1 All dates are in 2012 unless otherwise indicated.
2 For purposes of brevity, the Acting General Counsel is herein ref-
erenced as the General Counsel.

194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
promoted to the lead position in 2005. Turner testified that
although she and Craft never worked in the same department
when they were leads, their working relationship as leads was
not problematic.
In October 2010, Blinstrup retired, leaving the supervisor’s
position open. Both Craft and Turner applied for the position.
Turner was selected for the supervisory position and she super-
vised Craft until he transferred out of the Ballast department on
January 20, 2012. Turner testified that after assuming the su-
pervisory position, she concluded that Blinstrup had performed
a good deal of the leads’ work in addition to his own duties.
Respondent conducts a performance appraisal for every em-
ployee annually. The employee’s work is reviewed with re-
spect to quality, dependability, teamwork, and safety. After
supervising Craft for 4 months, Turner, with the help of
McMurrian, completed a performance appraisal for Craft.
McMurrian testified that Craft’s appraisal score indicated that
improvement was needed.
On February 9, 2011, Craft received an employee counseling
discipline for unsatisfactory performance based on a determina-
tion that he had failed to ensure that all orders in the Ballast
department were picked, processed, and shipped for 2 weeks
and he had failed to inform the supervisor of the issues. On
April 14, 2011, Craft received an additional employee counsel-
ing for unsatisfactory work based on a determination that he
failed to ensure good housekeeping practices. The following
month, Craft was given an employee counseling dated May 13,
2011, for unsatisfactory performance. The discipline was spe-
cifically issued because of a failure to ship certain packages and
orders on May 11 and 12, and for working overtime without
first obtaining authorization. On June 21, 2011, Respondent
issued Craft an employee counseling for failing to ensure that
all deliveries were shipped.
McMurrian testified that during the time that Craft worked as
a lead, she worked with him to personally coach him on learn-
ing his new duties. She recalled that he had struggled with run-
ning reports and she personally showed him how to run the
necessary reports. She provided him with screen print samples
of the transactions for him to use as references when she was
not available to help him.
2. Craft’s interaction with employee Kim Coleman
prior to his demotion
Kim Coleman began working for Respondent in August
2003 and she became a fulltime employee in January 2004.
Craft was already an employee at Respondent’s facility when
Coleman began her work at the facility. Coleman testified that
initially her relationship with Craft had been friendly. After a
period of time, however, Craft asked her for a date. She testi-
fied that she told him “No” explaining to him that he was be-
neath her. She recalled that she told him that he was married
and she didn’t “like his kind.” She further testified that she had
believed that he just wanted to go out with her in order to belit-
tle her as a single parent. Before Craft became a lead, Coleman
had little opportunity to deal with Craft as he worked in the
Receiving section and she worked in the Returns sections of the
department.
Coleman testified that when Craft became her lead, she felt
that he tried to exert control over her and to intimidate her. She
recalled that he told her “I run this floor and you’re going to do
what I ask you to do. I am the boss. They’re going to believe
what I say.” Coleman described Craft as speaking harshly to
her and she asserted that he spoke to her in a way that made her
feel that she was worth nothing. Coleman recalled that he told
her that she did not deserve to be there and his statement to her
was “your expiration date is over.” He told her that she was
going to be fired. Coleman also testified in detail about Craft’s
comments to her about the clothes that she was wearing, includ-
ing his specific references to her underwear.
McMurrian recalled that on July 8, 2011, Coleman came to
her office to discuss Craft. Coleman told McMurrian that Craft
was harassing her on the floor. Coleman reported that Craft
pulled her from her regular job to do other work, yelled at her,
and threatened that he would “make sure” that she would lose
her job. McMurrian spoke with Craft and explained to him that
Coleman’s job was in the Receiving section and she advised
him to coordinate with Coleman’s supervisor before he pulled
her off that job to do other work. McMurrian told Craft that
other employees had complaints about him and that he needed
to communicate with his team and to work more closely with
Supervisor Rolita Turner to understand the demands of the
Ballast area.
McMurrian also documented a meeting with employee
James Powell on July 10. Powell, who was also a lead in Bal-
last, reported to McMurrian that during a shift meeting with the
Ballast employees, Craft screamed at the employees and threat-
ened to ensure that they would be fired. Coleman testified that
she had attended this same meeting and she recalled that Craft
told the employees that they would be fired.
On July 15, 2011, McMurrian and Operations Manager
Guyot met with Craft. McMurrian told him that she felt that he
was not ready for the lead position and that he needed to return
to the position of material handler. Craft was also given a writ-
ten warning that referenced the incident occurring on July 10,
2011. The warning language notes that during a meeting with
Ballast employees, Craft threatened and berated the team and
acted in a way that was unacceptable. The warning also indi-
cated that other than Craft’s not following through with team
lead duties, employees Kim Coleman and Uma Jalloh perceived
Craft’s behavior as harassment. The discipline, that was signed
by Regional Distribution Center Manager McMurrian and Op-
erations Manager Guyot, confirmed that after 6 months, Craft
had not performed the team lead functions and that he would be
returned to the position of material handler.
3. Incidents occurring after Craft’s demotion
Following the July 2011 demotion, Craft returned to the po-
sition of material handler and his pay was reduced $2.50 an
hour. McMurrian testified that even though Craft was no long-
er in the lead position, the issues remained between Craft and
Coleman.
Coleman recalled an incident that occurred after Craft re-
turned to the job of material handler. Craft and Coleman ar-
gued as to whether Coleman had placed a skid in the wrong bin.
She argued that she had not and Craft argued that she had done
so. After she checked for herself, she found that the skid was in
PHILIPS ELECTRONICS NORTH AMERICA 195
the wrong bin. Coleman apologized to Craft and admitted that
she had been wrong. She testified that he told her to get on her
knees to make the apology. She refused.
On December 22, 2012, Turner telephoned McMurrian while
she was away from the facility on vacation. Turner reported
that Coleman had come to her alleging that Craft had left some
type of recording device next to her workstation and that she
was very uncomfortable and believed that Craft was trying to
record her conversations. McMurrian directed Turner to have
Guyot go to Coleman’s workstation and retrieve the device. In
his investigation, Guyot discovered that the device was a Play
Station Portable hand-held videogame system. McMurrian
recorded in her notes that because cell phones and other such
devices were not allowed on the work floor, Guyot told Craft
not to have the device on the floor as the company would not be
responsible if it were stolen. McMurrian also recorded in her
note concerning this incident that she had previously spoken
with Craft in June 2011 about using his cell phone or other
devices to record people without their knowledge. Although
Craft asserted to McMurrian in the June 2011 meeting that he
was only recording notes for himself as a team leader, McMur-
rian had directed him to use a note pad.
On December 26, 2012, Turner brought Coleman to McMur-
rian’s office and asked to speak with McMurrian. Coleman
told McMurrian that Craft was trying to make people think that
he was recording their conversations and phone calls and she
told McMurrian that she had experienced enough of Craft’s
harassment. Coleman reported that Craft appeared to be taking
pictures of the product that another employee was sorting.
Coleman reported that she was frightened of Craft and that she
felt that he was singling her out for criticism. She asserted that
Craft had threatened that he was going to get her fired.
Coleman also told McMurrian about the incident when Craft
told her to get on her knees to apologize to him. Coleman fur-
ther contended to McMurrian that Craft continued to stare at
her and to make her feel uncomfortable. McMurrian recalled
that Coleman was crying and appeared to be clearly upset in
reporting these things to her. McMurrian testified that Cole-
man reported that she was frightened of Craft and that she
feared for her life and her job.
Following this meeting, McMurrian spoke with other em-
ployees about Coleman’s allegations. Employee Antonio Ed-
wards reported that Craft had made the statement to him that he
(Craft) was going to start making some changes there and he
was going to fix it so that “no one had to kiss butt to move up
the ladder.” McMurrian documented that employee Len Lee
opined that Craft had “bad blood” for Coleman. Employee
Latoya Hyde opined that Craft had problems with “single
women” working on the work floor and she asserted that he
treats them differently than other women. McMurrian docu-
mented that employee Thelma Halbert reported that she had
witnessed Craft’s harassment of Coleman. Halbert reported to
McMurrian that even though Craft was no longer Coleman’s
lead, he continued to monitor her work and to tell her what to
do.
After speaking with various employees about Coleman’s al-
legations, McMurrian met with Craft. She told him that Cole-
man had reported that he had harassed her. Craft testified that
although McMurrian had given him specific details, he had not
asked for any details. Craft recalled that McMurrian asked him
why Coleman would have thought that he was harassing her.
He testified that he told McMurrian that he couldn’t’ speak for
Coleman; he could only speak for himself. Craft did not testify
that he denied the alleged behavior when speaking with
McMurrian. In direct examination, however, Craft denied that
he had stared at Coleman, watched her work, or threatened her.
He denied that he told her to kneel when she apologized to him.
He recalled that McMurrian had also told him that employees
had alleged that he had threatened management and that he had
made comments about replacing management. Craft denied to
McMurrian that he had done so.
4. Craft’s participation in preshift meetings
At the beginning of each workday and at the beginning of the
first shift, Respondent conducts a preshift meeting for all the
employees on that shift, including the temporary employees.
The meetings are usually conducted by the lead employees;
however, supervisors occasionally attend the meetings. The
majority of the meetings are devoted to pertinent work-related
topics for that day. After Turner became a supervisor in 2010,
she implemented an additional segment for the morning meet-
ing that was known as “a minute to shine.” After the leads
finished their portion of the meeting concerning work-related
topics, individual employees were given an opportunity to
speak during the meetings. Turner testified that she initiated
the segment to give employees a chance to discuss positive
things that had happened in their lives. After its implementa-
tion, Craft participated in the “minute to shine” on the average
of three times each week. Craft testified that he used this time
to try to motivate employees and he often gave speeches and
reworked the lyrics of songs to make them applicable to work.
Team Lead Lester Peete testified that for the most part,
Craft’s comments were about employees working together and
team work. He also confirmed that some of the employees
reacted negatively to Craft’s remarks and didn’t understand
what he was trying to say to them.
Coleman testified that Craft’s comments were “always” neg-
ative toward Respondent during these meetings; stating that
managers and supervisors were not doing what they were sup-
posed to do. Coleman recalled that he told employees that he
was going to “make things change.” She also recalled that his
comments in the meetings were directed toward her, stating
such things as “Certain people, you know who I’m talking
about. You’re not doing the right thing. You are going to be
terminated. Your time is up.”
5. Respondent’s continuing investigation of Craft
On January 3, 2012, Guyot submitted an incident report to
McMurrian recommending Craft’s termination. In the memo-
randum, Guyot described various performance problems in
Craft’s work as an hourly employee and as a lead that had been
observed. He concluded by stating:

I fully support Rolita Turner’s decision to demote Craft from
Lead back to material handler. Now, in light of all the other
incidents Lee has caused, I support the decision to move for-
ward and terminate Lee Craft from Phillips to eliminate the
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hostile working environment Lee Craft has caused.

On January 4, 2012, Coleman also provided Respondent
with a hand written statement outlining her concerns about
Craft. In the statement, Coleman referenced recent problems
with Craft, as well as, earlier problems in working with him.
She alleged in the statement that Craft asked her for a date and
she included her response to him. She reported that Craft con-
tinually criticized her and threatened that she would be fired.
She alleged that he stared at her throughout the day and she
added that she thought that he was trying to record her tele-
phone conversations. She also mentioned an incident occurring
as early as 2010 when Craft attempted to have her removed
from the facility by a security guard because he observed her
using her cell phone.
On January 4, 2012, Craft picked the wrong item when fill-
ing an order and an incorrect order was shipped to a customer.
On January 16, while deleting a delivery and adding to another
shipment, Craft added all new deliveries to one shipment, tak-
ing administrative staff several hours to correct and to reprint
318 deliveries.
6. Respondent’s initial decision to terminate Craft
On January 16, 2012, McMurrian met with Operations Man-
ager Guyot and Supervisors Joe Odum and William Gibson.
McMurrian recalled that they reviewed Craft’s personnel file
and discussed the fact that they had coached him, as well as
having issued disciplinary warnings to him. In a memorandum
dated January 16, 2012, McMurrian documented that when she
spoke with Craft on December 28, 2011, she told him that his
statements that were made during preshift meetings and to other
employees were being perceived by employees as working
against the company and threatening in nature. In their discus-
sions on January 16, 2013, McMurrian and the supervisors
discussed the fact that although they had removed Craft from
the lead position, they were continuing to have the same kinds
of issues with him. At that point, they decided that he should
be terminated and a notice of termination was prepared for
Craft. In reviewing the file, however, McMurrian and her man-
agers discovered that Craft had not previously received a final
written warning. Because it was Respondent’s custom to issue
a final written warning prior to a notice of termination, Re-
spondent did not issue Craft a notice of termination. A final
written warning was prepared and given to Craft on January 20,
2012.
The final written warning confirms that Craft was given the
warning because he had engaged in highly disruptive behavior
in the preshift meetings and because he had also engaged in
harassing and intimidating behavior towards colleagues and
towards management. The warning documents that several
employees had reported feeling threatened. McMurrian testi-
fied that she included these factors as a reason for the warning
based on the reports from employees Lester Peete, Antonio
Edwards, and Thelma Halbert who had reported Craft’s behav-
ior during the preshift meetings and his behavior toward other
employees. She explained that she had also based the warning
on Craft’s disrespectful behavior to Turner and the harassing
and intimidating behavior toward Coleman. McMurrian testi-
fied that she had simply found Coleman’s version of events
more credible than Craft’s. The warning further lists his errors
in shorting orders on January 14, 2012, and his shipping errors
in January 16, 2012.
In addition to giving Craft a final written warning, McMur-
rian decided to move Craft to the Professional department that
was in an entirely different building and where he would be
assigned to a male supervisor. When McMurrian met with
Craft on January 20, 2013, to give him the final written warn-
ing, she informed him of the transfer. Craft was also instructed
to stay completely away from Coleman’s work area. McMur-
rian also informed Coleman that Craft had been moved from
the Ballast department and assigned to a new supervisor.
7. Circumstances leading to Craft’s discharge
McMurrian testified that although Craft was instructed to
stay away from Coleman’s work area, he did not do so. On
January 24, and only 4 days after his final written warning,
McMurrian received reports from other employees that Craft
had taken the forklift from the Professional department and had
gone back into the Ballast work area. Coleman testified that
Craft came into her work area and while sitting on his forklift,
he began to brag about what happened to him. Coleman re-
called that Craft stated that McMurrian had done him a favor by
moving him because he would no longer have to lift the heavy
ballasts. As he was sitting about 10 feet away from Coleman,
Craft added that he was “untouchable.” Coleman testified that
he was directing his comments to her.
Coleman testified that when Craft was transferred, McMur-
rian told her that if Craft did anything to harass her, Coleman
should let McMurrian know. Both Coleman and Thelma Hal-
bert reported to McMurrian that when Craft came into the de-
partment he showed his disciplinary warning to employees and
spoke loudly. Coleman reported to McMurrian that Craft had
made the statement that he was “untouchable” and Coleman
reported to McMurrian that she had heard from other employ-
ees that Craft stated that his warning had been given to him
because of Coleman’s filing harassment charges against him.
Coleman testified that Craft parked his forklift approximately
10 feet away from her when he was speaking loudly about his
transfer and discipline. Employee Fred Smith also confirmed
to Supervisor Joe Odum and to McMurrian that Craft had
shown his disciplinary warning to him.
McMurrian testified that Craft’s behavior was grounds for
termination for two reasons. She said that Craft’s behavior on
January 24 and previously violated Respondent’s policy to
maintain a harassment free workplace. Additionally, by going
back into the Ballast department, Craft had specifically disre-
garded her directive to stay out of that work area. McMurrian
testified that aside from his discussion of his disciplinary no-
tice, Craft engaged in behavior that was sufficient grounds for
termination.
C. Whether Respondent Violated the Act
1. The parties’ positions
The General Counsel maintains that Respondent unlawfully
terminated Craft because he engaged in protected concerted
activity by discussing his January 20 final wanting with em-
ployees and making statements critical of Respondent’s deci-
PHILIPS ELECTRONICS NORTH AMERICA 197
sion to issue him the final warning. Specifically, the General
Counsel alleges in the complaint that since January 19, 2012,
Respondent has maintained a rule that discipline is confidential
and that prohibited employees from sharing and/or discussing
their discipline with their coworkers. The complaint alleges
that between January 20 and 24, 2012, Craft showed and dis-
cussed with his coworkers the final written warning that he
received on January 20, 2012, and that Respondent terminated
him for doing so. Respondent asserts that its decision to termi-
nate Craft was based on his “final act of harass-
ment/intimidation/bullying and his disruptive behavior occur-
ring on January 24, 2012.”
2. Applicable legal authority
As discussed further below, the parties not only disagree
about the conduct that triggered Craft’s termination, but they
also disagree as to Respondent’s motivation in deciding to ter-
minate Craft. In cases where an employer’s motivation is an
integral factor in determining the lawfulness of discipline is-
sued to employees, the Board utilizes the test that is outlined in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 800 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). The Wright Line
analysis is based on the legal principle that an employer’s mo-
tivation must be established as a precondition to a finding that
the employer has violated the Act. American Gardens Man-
agement Co., 338 NLRB 644, 645 (2002). In its decision in
Wright Line, the Board stated that it would first require the
General Counsel to make an initial “showing sufficient to sup-
port the inference that protected conduct was a ‘motivation
factor’ in the employer’s decision.” Wright Line, above at
1089.
Under Wright Line, the General Counsel must establish not
only that the employee engaged in protected conduct, but also
that the employer was aware of such protected activity and that
the employer bore animus toward the employee’s protected
activity. Praxair Distribution, Inc., 357 NLRB 1048, 1048 fn.
2 (2011); Camaco Lorain Mfg. Plant, 356 NLRB, 1185 (2011).
Specifically, the General Counsel must show that the protected
activities were a substantial or motivating factor in the decision
to take the adverse employment action. North Hills Office Ser-
vices, 346 NLRB 1099, 1100 (2006). In effect, proving the
established elements of the Wright Line analysis creates a pre-
sumption that the adverse employment action violated the Act.
To rebut such a presumption, the respondent must persuade by
a preponderance of the evidence that the same action would
have taken place even in the absence of the protected activity.
Manno Electric, 321 NLRB 278, 281 (1996). If the evidence
establishes that the reasons given for the discipline are pre-
textual, either in that they are false or not relied on, the em-
ployer has failed to show that it would have taken the same
action absent the protected conduct, and there is no need to
perform the second part of the Wright Line analysis. Golden
State Foods Corp., 340 NLRB 382 (2003); Limestone Apparel
Corp., 255 NLRB 722 (1981).
The Board has held that an employer’s restriction on em-
ployee communication is overbroad when the restriction is not
limited by time or place. SNE Enterprises, 347 NLRB 472,
492–493 (2006), enfd. 257 Fed. Appx. 642 (4th Cir. 2007).
Furthermore, an employer’s restriction on employees’ discuss-
ing confidential information interferes with employees’ Section
7 rights unless the employer can demonstrate a legitimate and
substantial business justification that outweighs the employee’s
Section 7 interests. Caesar’s Palace, 336 NLRB 271, 272 fn. 6
(2001). See also Westside Community Mental Health Center,
327 NLRB 661, 666 (1999). The General Counsel maintains
that Craft was unlawfully terminated because he shared confi-
dential information about his January 20, 2012 warning with
other employees.
3. Whether Respondent maintained an unlawful
confidentiality rule
Paragraph 4 of the complaint alleges that since January 19,
2012, Respondent has maintained a rule that discipline is confi-
dential and prohibiting employees from sharing and/or discuss-
ing their discipline with their coworkers. It is undisputed that
there is no written policy that prohibits employees from dis-
cussing their discipline with other employees. McMurrian also
testified that Respondent does not have a policy that prohibits
employees from discussing disciplinary notices. In a sworn
affidavit to the Board prior to the hearing, Craft testified that he
was not aware of any policy or rule that prohibits an employee
from showing or discussing discipline with other employees.
Craft further testified that when he received his final written
warning, none of the supervisors or managers told him that the
warning was confidential; either with respect to the form itself
or to discussion about the discipline.
Despite the testimony of both McMurrian and Craft, the
General Counsel nevertheless asserts that Respondent unlaw-
fully implemented a policy prohibiting the discussion of disci-
pline on January 19, 2012. In maintaining this assertion, the
General Counsel relies on a file summary that is dated January
24, 2012, and signed by McMurrian, supervisors, and employ-
ees on January 25, as well as the wording of Craft’s January 25
discharge notice.
In the January 24, 2012 memorandum, McMurrian docu-
ments that Coleman and Halbert came to her, reporting that
Craft was showing his disciplinary form to employees on the
floor and they confirmed the content of the discipline to her.
Coleman reported to McMurrian that Craft had told other em-
ployees that the discipline was given to him because she
(Coleman) had filed harassment charges against him. She also
told McMurrian that Craft had bragged that he was “untoucha-
ble” and that management had done him a favor by moving him
out of the Ballast area. McMurrian included in the memoran-
dum the information provided by Halbert and by employee
Fred Smith about Craft’s comments concerning his discipline
and his comments about his transfer out of the Ballast depart-
ment. In referencing the fact that Coleman and Halbert came to
her with complaints about Craft’s statements and actions,
McMurrian adds: “These employees are aware that disciplinary
forms are confidential information and should not be shared on
the warehouse floor, at any time, much especially during work-
ing hours.” McMurrian also added, “Kim stated that he was
purposely showing the writeup which he knows is confidential
information so it would get back to her like she was the blame.”
Coleman testified that she told McMurrian that the discipline
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
forms were confidential and should not be shared with others.
When asked why she made this statement, Coleman admitted
that no one ever told her that such discipline was confidential;
she had just assumed that it was. She explained that because a
discipline is personal for an employee, she assumed that em-
ployees should keep it to themselves. Coleman further testified
that when she told McMurrian that she thought that Craft was
revealing confidential information, McMurrian did not respond
that it was confidential or tell her that it was wrong for Craft to
show her his disciplinary form. McMurrian’s response to
Coleman was simply, “Why would he want to do that? Why
would he want to show that?”
Based on the total record evidence, it appears that Coleman
was the individual who appeared to be most concerned that
Craft was telling employees about his discipline. Based on her
testimony and the information that she reported to McMurrian,
Coleman was disturbed by Craft’s statements about his disci-
pline and transfer because she believed that he was targeting
her as responsible. Thus, while McMurrian may have refer-
enced in the memorandum that Craft showed his disciplinary
warning to employees on January 24, as well as the fact that
Coleman raised the confidentiality of the discipline, there is no
credible record evidence that Respondent told employees on
January 19, 2012, that they were prohibited from sharing and/or
discussing their discipline with coworkers as alleged in com-
plaint paragraph 4.
McMurrian included in Craft’s termination notice that Craft
requested a copy of his writeup and he was informed of the
confidentiality of the discussion and the form during this meet-
ing. McMurrian testified that Craft raised the issue of confiden-
tiality in his disciplinary meeting and she had assured him that
their conversation was confidential. The record supports her
explanation as to how confidentiality was raised during the
meeting and why she added a reference to confidentiality as she
did in Craft’s termination notice. Craft specifically denied that
he was told in the meeting that the disciplinary form was confi-
dential. He did not testify that McMurrian or any of the man-
agers told him that he could not discuss his discipline. Based
on both the testimony of McMurrian and Craft, it is reasonable
that when Craft requested a copy of his discipline, he was given
assurances that Respondent would maintain the confidentiality
of his discipline. I do not find sufficient evidence that Re-
spondent told Craft or any other employees on January 19,
2012, that they were prohibited from discussing their discipline
with other employees. Overall, I don’t find the wording in
Craft’s termination notice as sufficient evidence to prove that
Respondent established a prohibitive policy 6 days earlier as
alleged in the complaint. Accordingly, I do not find merit to
complaint paragraph 4 as alleged.
4. Whether Craft was terminated because of his
protected activity
Independent of whether Respondent implemented a policy
on January 19, 2012, that restricted employees from discussing
their discipline, there remains the issue of whether Respondent
terminated Craft because he engaged in protected activity by
discussing his discipline with other employees. Specifically,
the General Counsel alleges that between January 20 and 24,
2012, Craft showed and discussed with his coworkers the coun-
seling form that he received on January 20, 2012. Respondent,
however, alleges that Craft was terminated because of his con-
duct on January 24, 2012.
D. The Application of the Wright Line Analysis
1. Whether Craft engaged in protected activity
As discussed above, the first component of the Wright Line
analysis is establishing that an employee has engaged in pro-
tected activity. Although Respondent conducted an investiga-
tion prior to issuing Craft the January 20, 2012 warning, there
is no evidence that Respondent engaged in any further investi-
gation of Craft’s conduct prior to January 24, 2012, when
McMurrian received complaints from Coleman and Halbert.
The overall record indicates that once Respondent issued Craft
the final warning and then transferred him to an area for super-
vision by a male supervisor, Respondent took no further notice
of Craft until January 24, 2012. Respondent asserts that Craft’s
termination was triggered by his conduct on January 24, 2012,
when he came back into the Ballast area and caused a disturb-
ance related to his discipline and transfer. Interestingly, Craft
denies that he went into the Ballast area after January 20, 2012.
He contends that while he spoke with other employees about
the discipline that he had received, he did so between January
20 and 24, 2012, and on nonworking time in areas other than
the Ballast area. Overall, I do not find Craft’s testimony credi-
ble in this regard. The total record evidence, including the
credible testimony of Coleman and Halbert, support a finding
that Craft came back into the Ballast area on January 24, 2012,
as documented in McMurrian’s January 24, 2012 memoran-
dum.
Although the parties disagree with respect to when Craft
talked with other employees about his discipline and his trans-
fer, there is no dispute that he did so. As the Board has previ-
ously determined, “it is important that employees be permitted
to communicate the circumstances of their discipline to their
coworkers so that their colleagues are aware of the nature of
discipline being imposed, how they might avoid such disci-
pline, and matters which could be raised in their own defense.”
Verizon Wireless, 349 NLRB 640, 658 (2007). Thus, Craft’s
communication to other employees about his discipline and
transfer is clearly protected activity.
2. Respondent’s knowledge of Craft’s
protected activity
Respondent argues that the second prong of the Wright Line
analysis cannot be met because Respondent had no knowledge
that Craft was talking with employees about his discipline prior
to January 24, 2012. Respondent argues that inasmuch as Craft
denies engaging in protected activity on January 24, 2012, the
requisite knowledge cannot be established. I note, however,
that actions taken by an employer against an employee based
on the employer’s belief that the employee engaged in or in-
tended to engage in protected activity are unlawful even though
the employee did not in fact engage in or intend to engage in
such activity. Signature Flight Support, 333 NLRB 1250, 1250
(2001); U.S. Service Industries, Inc., 314 NLRB 30, 31 (1994),
enfd. mem. 80 F.3d 558 (D.C. Cir. 1996). Thus, even if I were
PHILIPS ELECTRONICS NORTH AMERICA 199
to credit Craft’s testimony, finding that he did not come back
into the Ballast area on January 24, 2012, Respondent believed
that he did so, and disciplined him for conduct related to pro-
tected activity. Accordingly, I find that Respondent had
knowledge that Craft engaged in protected activity.
3. Whether Craft’s protected activity was a motivating
factor in his discharge
Counsel for the General Counsel relies on the January 25,
2012 discharge notice as a basis for showing that Craft’s dis-
cussions about his discipline were a factor in Respondent’s
motivation to discharge Craft. The notice specifically describes
the violation as:

Lee Craft is being terminated effective immediately due to
disrupting the operation and sharing confidential documenta-
tion and information during working hours and continues to
use intimidating language towards management. Lee re-
ceived a final written disciplinary notice warning against these
exact behaviors on January 20, 2012. Lee requested a copy of
the writeup and was informed of the confidentiality of the dis-
cussion during the meeting.

Counsel for the General Counsel also asserts that in McMur-
rian’s memorandum of January 24, 2012, she focuses on Craft’s
discussing his warning notice with other employees while writ-
ing that employees are aware that discipline forms “are confi-
dential and should not be shared on the warehouse floor at any
time.” As I have discussed above, I have found that the discus-
sions and concerns about the confidentiality of Craft’s disci-
pline were initiated by employees Coleman and Halbert rather
than by the Respondent. McMurrian, however, identified the
breach of confidentiality in both her January 24, 2012 memo-
randum as well as in Craft’s termination notice. Respondent
does not deny that Craft was terminated because of his going
back into the Ballast department and the statements that he
made there to employees. These statements included his dis-
cussion about his discipline and his transfer. Thus, as his dis-
cussions about his transfer and discipline were intertwined with
all of his actions on January 24, 2012, such actions were a mo-
tivating factor in Respondent’s decision to discharge Craft.
Accordingly, the General Counsel has met the initial burden of
showing that protected activity was a motivating factor in Re-
spondent’s decision to terminate Craft. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
4. Whether Respondent would have terminated Craft in the
absence of protected activity
Once the General Counsel meets the initial burden of show-
ing that an employee’s protected activity was a motivating fac-
tor in the adverse employment, the employer has the burden of
demonstrating that it would have taken the same action in the
absence of the protected conduct. Wright Line, 251 NLRB at
1089. The total record evidence supports a finding that Re-
spondent has met this burden.
As argued by counsel for the Respondent, the record evi-
dence demonstrates that Respondent had already decided to
terminate Craft before he engaged in any protected activity. In
a memorandum dated January 16, 2012, McMurrian describes a
December 28, 2011 meeting attended by Supervisors Odum and
Gordon, as well as Craft and McMurrian, Craft was informed
that Respondent was investigating an additional report of his
engaging in intimidating and harassing behavior. McMurrian
documented that she informed Craft of the complaints received
from other employees. McMurrian further documented in the
report a number of comments and complaints submitted by
employees, as well as by Supervisor Rolita Turner. Specifical-
ly, McMurrian noted that Turner had reported that Craft had
persistently attempted to undermine and belittle her decisions
and that he continued to demonstrate a lack of respect for
Turner. McMurrian noted that Craft’s disruptive behavior was
inappropriate; interfering with operations and it was viewed as
unstable as documented by specific named employees.
McMurrian concludes:

After many coaching sessions, and disciplinary action, which
included a demotion from the Team Lead position, Lee Craft
has continued to display intimidating, offensive, and demoral-
izing behavior. It is in the best interest of the company and
the employees of Phillips [sic]to terminate Lee Craft’s em-
ployment, effective immediately. The intimidating behavior
is a violation of company policy. Phillip’s [sic] has the re-
sponsibility to create a safe environment where offensive and
intimidating behavior is not tolerated.

McMurrian concluded the memorandum by noting that the
decision to terminate Craft had been made jointly by the distri-
bution manager, the operations manager, and by three distribu-
tion center supervisors.
The termination notice that was prepared on January 16,
2012, reflected that Craft was being terminated because of in-
appropriate behavior and a violation of company policies and
procedures. The notice documented that Craft had been re-
moved from the team lead position on July 25, 2011, because of
his use of intimidating tactics that were perceived by two fe-
male employees as harassment and because he was not per-
forming the tasks required in the team lead position. The Janu-
ary 16, 2012 termination notice further noted that in July 2011,
Craft had been informed that if he failed to perform the duties
of material handler or if he had further issues with his fellow
coworkers, he would be subject to further discipline up to and
including termination.
As noted above in this decision, Respondent did not termi-
nate Craft on January 16, 2012, as originally intended. Because
it was discovered that he had not previously received a final
written warning, the termination was converted to a final writ-
ten warning and he was spared termination. The warning that
issued on January 20, 2012 documents that Craft had engaged
in inappropriate behavior, unsatisfactory performance, and a
violation of company policy/procedures. The final written
warning included a reference to two specific performance is-
sues. The warning also referenced that Craft had engaged in
highly disruptive behavior in the preshift meetings and that
Craft had engaged in harassing and intimidating behavior to-
ward colleagues and towards management. There was no alle-
gation or finding that Craft discussed confidential information
or engaged in any other protected activity.
Because of Craft’s reported behavior toward female employ-
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees as well as his female supervisor, Craft was moved out of the
Ballast department to a department under a male supervisor.
McMurrian credibly testified that he was instructed to stay out
of the Ballast department. In transferring, Craft into the new
department, Respondent gave Craft an opportunity for a fresh
start to work with different employees and a different supervi-
sor.
On January 24, 2012, McMurrian learned that Craft had not
only returned to the Ballast department in violation of her in-
structions to him, but that he had also engaged in behavior that
employees reported as disruptive. In alleging that Respondent
terminated Craft because of his sharing information about his
discipline with other employees, the General Counsel relies on
the wording of Craft’s final termination notice. The General
Counsel specifically relies on the fact that Respondent refer-
enced Craft’s “sharing confidential documentation and infor-
mation during working hours” in the description of Craft’s
conduct. As I have indicated above, such wording is arguably
sufficient to establish that the General Counsel has met the
initial burden of a prima facie case under Wright Line. The
remainder of the termination notice, however, demonstrates that
Respondent would have terminated Craft in the absence of any
protected activity.
The January 25, 2012 termination notice documents that he
was also terminated because of his disrupting the operation and
for using intimidating language toward management. Even
more significant, however, is the additional language that was
included in the termination notice:

Lee received a final written disciplinary notice warning
against these exact behaviors on January 20, 2012.

There is no dispute that the final warning given to Craft on
January 20, 2012, did not involve any allegation of disclosing
confidential information. The language of the warning reflects
that it was issued to Craft for (1) highly disruptive behavior; (2)
harassing and intimidating behavior towards colleagues and
management, and (3) for performance issues. Thus, it is appar-
ent that even in the absence of any protected activity, Respond-
ent terminated Craft because Respondent determined that he
had engaged in the same conduct that triggered his January 20,
2012 notice. More significantly, Craft’s conduct on January
24, 2012, was consistent with the conduct for which Respond-
ent based its earlier decision to terminate Craft on January 16,
2012, and prior to any alleged protected activity.
As discussed above, Craft denies that he came back into the
Ballast department on January 24, 2012, and spoke with em-
ployees. Because of this denial, the General Counsel asserts
that Craft engaged in protected activity; it was simply not on
January 24, 2012. Because of Craft’s denial, the General
Counsel is forced to argue that Craft discussed his discipline
with employees during the period between January 19 and 24,
2012. I note, however, that neither McMurrian’s memorandum
of January 24, 2012, nor Craft’s termination notice reference
any dates of alleged misconduct other than January 24, 2012.
In reaching the decision that Respondent would have terminat-
ed Craft in the absence of any protected activity, I rely in large
part on the documentary evidence and the credible testimony of
McMurrian. Based on the information provided by other em-
ployees, McMurrian determined that Craft had disregarded her
instructions to stay out of the Ballast department and that he
was engaging in the same conduct for which he had previously
been warned.
There is no question that Craft’s behavior on January 24,
2012, included his comments to other employees about his
discipline and his transfer. As discussed above, Section 7 of
the Act clearly protects employees when they tell other em-
ployees about their discipline. Based on the testimony of
Coleman, however, it is also apparent that Craft’s statements
were arguably motivated to accomplish more than a simple
sharing of information with other employees. Based on her
testimony and on the information that she gave McMurrian, it is
evident that Coleman perceived Craft’s return to the Ballast
department and his statements to her and to other employees as
additional harassment. Ostensibly, Craft’s behavior reflected
more than simply sharing what Respondent had done to him; it
included communicating to other employees that Coleman was
responsible for his discipline and transfer. It is reasonable that
Respondent determined that in his doing so, Craft had again
harassed Coleman and engaged in the same conduct for which
Respondent had intended to fire him only 8 days earlier.
It has long been held that an employer violates the Act if it is
shown that the discharged employee at the time engaged in
protected activity, that the employer knew it was such, that the
basis of the discharge was an alleged act of misconduct in the
course of that activity, and that the employee was not, in fact,
guilty of that misconduct. An employer’s honest belief, how-
ever, provides a defense to a charge of discrimination absent a
showing that the employee did not, in fact, actually engage in
the alleged misconduct. NLRB v. Burnup & Sims, Inc., 379
U.S. 21, 22 (1964); Westinghouse Electric Corp., 296 NLRB
1166, 1173 (1989). In the instant case, the evidence is not suf-
ficient to establish that Craft did not engage in the conduct that
was reported to McMurrian by his fellow employees. Thus,
Respondent has demonstrated that it would have terminated
Craft in the absence of any protected activity.
Accordingly, I do not find that Respondent terminated Craft
in violation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Philips Electronics North American Cor-
poration, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent has not violated the Act as alleged in the
complaint.
[Recommended Order omitted from publication.]