Endicott Interconnect Technologies, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2005

345 N.L.R.B. 448 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 28
448
Endicott Interconnect Technologies, Inc. and Alliance
@IBM/Communications Workers of America,
Local 1701, AFL–CIO. Case 3–CA–24105
August 27, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 7, 2003, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed a brief answering the Respondent’s excep-
tions.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to affirm the
judge’s rulings, findings, and conclusions as clarified
below, and to adopt the recommended Order.2
The issue in this case is whether public statements
made by employee Richard White on two occasions con-
stituted activity protected by the Act, or rather were dis-
loyal conduct warranting his discharge for cause. The
judge found White’s conduct protected, and concluded
that the Respondent violated the Act by retaliating
against him. Consistent with our discussion below, we
find that the judge’s decision is in accord with NLRB v.
Electrical Workers Local 1229 (Jefferson Standard), 346
U.S. 464 (1953), and its progeny.
I. THE RELEVANT FACTS
The Respondent produces printed circuit boards for the
computer industry at its facility in the Binghamton area
of upstate New York. The Respondent’s owners had ne-
gotiated and completed the purchase of the business from
IBM between March and November 2002.3 Their moti-
vation in acquiring the business was, in part, to protect
the local economy from massive layoffs being contem-
plated by IBM, and in part to take advantage of a poten-

1 In addition, the General Counsel filed cross-exceptions and a sup-
porting brief; the Charging Party filed cross-exceptions and a brief both
supporting its cross-exceptions and in opposition to the Respondent’s
exceptions; the Respondent filed a reply brief in further support of its
exceptions and in opposition to the General Counsel’s and the Charging
Party’s cross-exceptions; and the Charging Party filed a reply brief in
further support of its cross-exceptions.
2 In its exceptions, the Charging Party requested that, in addition to
the usual remedial notice posting, the Board’s notice should be posted
electronically by means of the Respondent’s e-mail and intranet sys-
tems. There is no evidence in the record concerning the Respondent’s
customary means of providing information to its employees. Member
Liebman would leave this matter to the compliance stage. Member
Schaumber would deny the Union’s request. In the absence of a major-
ity in favor of requiring electronic posting, the Union’s request is de-
nied.
3 All subsequent dates are in 2002.
tially profitable business investment. In exchange for
their commitment to maintain jobs at the facility, the
Respondent’s owners received financial assistance from
the State of New York in completing the transaction.
After the purchase, IBM became a customer of the Re-
spondent, accounting for about 60 percent of the Com-
pany’s sales.
The Union had been organizing at the facility for about
3 years prior to the purchase, although it had not suc-
ceeded in becoming the IBM employees’ bargaining rep-
resentative. The Union continued its organizing activities
with the employees of the Respondent who were carried
over from IBM after the purchase.
On November 15, 2 weeks after the purchase was
completed, the Respondent permanently laid off 10 per-
cent of its work force of 2000 employees. Because IBM
had been one of the area’s larger employers, and because
of the investment of public funds in the enterprise to pre-
serve local jobs, the layoffs attracted significant attention
in the local media. The Union requested that employee
and union member White, who was not laid off, provide
comments about the layoff for an article in a local news-
paper. The article appeared on November 16. In relevant
part, it stated:
The firing of 200 people at the fledgling Endicott
Interconnect Technologies two weeks after its birth
was a “pragmatic” decision by James J. McNamara,
Jr., president and chief executive officer.
“I have a fiduciary responsibility to make this
business profitable,” McNamara said, just hours af-
ter notifying scores of mid-level managers, engi-
neers and support people on Friday morning that
they no longer had jobs.
Those affected by Friday’s action are not in a
forgiving mood. They are unwilling to accept that
the cutbacks are in the best interest of the company.
Many feel a sense of betrayal in their enthusiasm for
a new start with this IBM successor company. Other
workers believe that they were fed a line of false
promises when the deal to sell the IBM-Endicott site
to local investors was announced in July.
“This is greed with a capital G,” said Mike
McKercher, who spent 26 years with IBM and two
weeks with Endicott Interconnect. “I walked by
Thomas Watson’s picture and you could see tears
running down his (face).”
Endicott Interconnect executives said they had no
choice in the matter. Depressed production volumes
don’t support the infrastructure the 15-day-old com-
pany inherited from IBM Corp. As an independent
company without the corporate bureaucracy of the
entrenched computer maker, Endicott Interconnect
ENDICOTT INTERCONNECT TECHNOLOGIES, INC. 449
Technologies could slice off a layer of management
without an effect on the customer, McNamara said.
Some employees disagree, saying the decision
made Friday will hurt the company over the long
term.
“There’s gaping holes in this business,” said
Rick White, an employee with 28 years at the Endi-
cott plant who, with nearly 2,000 other people, re-
cently transferred from IBM to Endicott Intercon-
nect.
White, who kept his job, said development and
support people with specific knowledge of unique
processes were let go, leaving voids in the critical
knowledge base for the highly technical business.
McNamara, for his part, doesn’t dispute that Fri-
day’s action will produce more work and more re-
sponsibilities for others in the plant. Managers with
one area of responsibility may be asked to oversee
one or two other areas, he said. Cutting a manage-
ment layer, however, will give the remaining work-
ers a larger role in the business, he said. [Emphasis
added.]
Soon after the article was published, William Maines,
one of the Respondent’s co-owners, received a telephone
call from an IBM official who called on behalf of IBM as
a customer. In response to questions about White’s “gap-
ing holes” comment in the article, Maines assured the
official that the layoff would not affect the Company’s
performance.
On November 19, White was called into a meeting
with Maines. Maines testified that he warned White that
his comments in the article had disparaged the Company
in violation of the company handbook and would not be
tolerated further. He threatened to terminate White if it
happened again.
Because of the significance of the business to the local
economy, the newspaper that had published the Novem-
ber 16 article maintained a public-forum website where
people could read and/or submit opinions about the pur-
chase of the business by the Respondent. On December
1, White responded to an antiunion message that an indi-
vidual named House had contributed to the forum:
To Mr. House: Why do you continue to try to bundle
reasons why a union is suspect and not so desirable for
EIT employees? Why do you site [sic] all the bad
things about Unions, and ignore all the bad things that
IBM and EIT have done to the employees and their
families and the community at large? Isn’t it about time
you seriously thought about the fact that no one else
will help to stop the job losses, and root for the workers
of the community instead of defending the likes of Bill
Maines, George Pataki, and Tom Libous? Hasn’t there
been enough divisiveness among the people working in
this area? Isn’t it about time we stood up for our jobs,
our homes, our families and our way of life here? Do
you want to sit by and watch this area go to hell and
dissolve into a welfare town for people over 70? This
business is being tanked by a group of people that have
no good ability to manage it. They will put it into the
dirt just like the companies of the past that were
“saved” by Tom Libous and George Pataki, i.e.,
“Telespectrum”, “IFT (Flex)”. When are you going to
get it??? A union is not just a protection for the em-
ployees. It’s an organization that collectively fights for
improvements and benefits for working people in
communities like ours. Forget Jimmy Hoffa and the
mob. Those people and situations are stereotypes of
fools who chose to undermine the very system they
vowed to protect. They are the minority and always
have been. Look around. Do you think the government
will help you when you lose your job and your house?
Think again. A union is the beginning of a community
standing up for itself. It’s time is now.
On December 19, Maines and White met in Maines’
office to discuss the internet-forum message. Maines
testified that he told White he had disparaged the Com-
pany again, especially his reference to the Company “be-
ing tanked” by Maines and others. White was then dis-
charged, consistent with Maines’ warning of November
19.
The General Counsel’s complaint alleged that the Re-
spondent violated the Act by warning and discharging
White. The Respondent contended that White’s conduct
was unprotected, and that he was lawfully warned and
then discharged for disloyalty to the Company.
The judge analyzed both the newspaper comments and
the internet-forum remarks under Jefferson Standard,
supra, and relevant Board precedent. He found that the
November 15 layoff constituted a labor dispute between
the Respondent and the Union, and that White’s com-
ments in the newspaper article were part of the context of
the dispute. The judge rejected the Respondent’s argu-
ment that White’s conduct was not protected because the
article did not refer to the Union; he found it sufficient
that the Union had in fact authorized White to speak. He
also found that the content of White’s remarks did not
exceed the boundary of conduct protected by the Act.
Similarly, the judge found that White’s December 1
internet-forum message referred to, and was part of, the
labor dispute arising from the November 15 layoff, as
well as the Union’s efforts to organize Respondent’s em-
ployees. Again, the judge found that the content of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD450
White’s message was within the area of protected speech
covered by the Act. Accordingly, he concluded that the
Respondent had violated the Act by threatening and
warning White on November 19, and by discharging him
on December 19.
II. DISCUSSION
A. The Relevant Case Law
Employee appeals concerning employment conditions
made to parties outside the immediate employer-
employee relationship may be protected by the Act.4
However, that protection may be forfeited, as explained
by the Supreme Court in Jefferson Standard, supra, and
more recently by the Board in Mountain Shadows Golf
Resort, 330 NLRB 1238 (2000) (Mountain Shadows I):5
In Jefferson Standard, the Supreme Court held
that a television station was justified in discharging
certain of its technician employees who had pre-
pared and distributed to the public some 5000 copies
of a handbill strongly disparaging the quality of the
station’s broadcasting and suggesting that the com-
munity was being treated as “second-class.” Al-
though the technicians’ union was involved in a col-
lective-bargaining dispute with the employer, the
employees were not on strike, the handbill made no
reference to the union or to any dispute or issue re-
lating to the technicians’ employment, and the hand-
bill did not purport to solicit support or sympathy for
the technicians. The Court agreed with the employer
that the handbill demonstrated such “detrimental dis-
loyalty” as to provide cause for discharge.
In cases decided since Jefferson Standard, the
Board has held that employee communications to
third parties in an effort to obtain their support are
protected where the communication indicated it is
related to an ongoing dispute between the employees
and the employers and the communication is not so
disloyal, reckless or maliciously untrue as to lose the
Act’s protection.6
The Board evaluates the protected character of an as-
sertedly disloyal communication “in its entirety and in

4 Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).
5 See also Mountain Shadows Golf Resort, 338 NLRB 581 (2002)
(Mountain Shadows II). Both Mountain Shadows cases were affirmed
by the Ninth Circuit Court of Appeals, sub nom. Jensen v. NLRB, 86
Fed.Appx. 305, 2004 WL 78160 (2004). In Mountain Shadows I, the
Board found that an employee’s handbill was unprotected because it
made no reference whatsoever to a labor dispute. As the analysis below
makes clear, the present case is distinguishable: White’s two public
communications referred explicitly to labor disputes involving the
Respondent and its employees and the Union.
6 330 NLRB at 1240 (fn. citations omitted).
context.”7 Moreover, in applying the Jefferson Standard
doctrine, the Board relies on the definition of a “labor
dispute” in Section 2(9) of the Act.8 That section states:
The term “labor dispute” includes any controversy con-
cerning terms, tenure or conditions of employment, or
concerning the association or representation of persons
in negotiating, fixing, maintaining, changing, or seek-
ing to arrange terms or conditions of employment, re-
gardless of whether the disputants stand in the proxi-
mate relation of employer and employee.
In short, this definition comprehends disputes concerning
either employment conditions or representation for collec-
tive bargaining. The presence of an organizing union or a
collective-bargaining relationship is not required.9 There
need not be an ongoing strike or picketing.10 All that is re-
quired is a controversy that relates to terms or conditions of
employment.
A permanent layoff of hundreds of employees is, by
definition, a change in employment conditions, both for
the employees who are terminated and for those who
remain working. If the layoff sparks disagreement be-
tween management and the employees affected—
whether a union is involved or not—it is a “labor dis-
pute” under Section 2(9).
B. The Present Case
Viewed in context, the November 16 newspaper article
and the December 1 internet posting each provide more
than enough information for an ordinary reader to under-
stand that a controversy involving employment is at is-
sue. Moreover, the requisite nexus between White’s
statements and these labor controversies is apparent. Fi-
nally, his comments were not so egregious in the circum-
stances that the Act’s protection should be withdrawn.
Accordingly, his conduct was protected in each instance.
1. The November 16 article
The November 16 article sets forth two views of the
widely-publicized layoff of 200 employees, an issue of
significant import to the local community and the tax-
payers whose funds had been invested in the enterprise to
preserve local jobs. The Respondent’s CEO, James

7 Sierra Publishing Co. v. NLRB, 889 F.2d. 210, 217 (9th Cir. 1989).
8 See Emarco,Inc., 284 NLRB 832, 833 (1987).
9 See, e.g., NLRB v. Washington Aluminum Co., 370 U.S. 9, 15–16
(1962) (unrepresented employees’ disagreement with their employer
over work conditions was a “labor dispute” under Sec. 2(9); Compu-
ware Corp. v. NLRB, 134 F.3d 1285, 1290 (6th Cir. 1998), cert. denied
523 U.S. 1123 (1998) (same); Hacienda de Salud-Espanola, 317 NLRB
962, 966 (1995) (same).
10 See, e.g., Emarco, supra, 284 NLRB at 833–834. (comments to a
third party by former strikers awaiting recall were related to a labor
dispute under Sec. 2(9) that predated the strike).
ENDICOTT INTERCONNECT TECHNOLOGIES, INC. 451
McNamara, speaks for management. White, as well as
Mike McKercher, a laid-off employee, speak for the af-
fected employees. White, who kept his job, is portrayed
as representing employees who oppose the layoff be-
cause they believe that it “will hurt the company over the
long term.” He describes “gaping holes” in the Com-
pany’s “critical knowledge base,” due to the loss of em-
ployees “with specific knowledge of unique processes.”
It is apparent that White’s interest is in the layoff’s im-
pact on employment conditions for workers continuing at
the plant.
The judge found that the Union, although not men-
tioned in the article, was part of the layoff dispute be-
cause it had asked White to participate in the article. In
its exceptions, the Respondent contends that the absence
of any reference to the Union in the article itself leaves
White’s comments unrelated to any labor dispute and
therefore unprotected.
We neither rely on the judge’s view, nor find merit in
the Respondent’s exceptions. As we explained above, the
presence of a union is not required to establish that a
labor dispute exists. The most casual reader of the article
would recognize that the layoff involved a controversy
between management and employees concerning em-
ployment conditions. Thus, there was an identifiable la-
bor dispute. With CEO McNamara’s comments on one
side of the dispute, and White’s on the other, a reader can
“filter the information critically,”11 i.e., identify the inter-
ests of the parties to the dispute. Accordingly, the fact
that the article presents White’s statements in clear rela-
tion to a labor dispute provides him with protection un-
der the Act, consistent with the Jefferson Standard doc-
trine.12
2. The December 1 internet posting
White’s December 1 internet posting was a response to
an antiunion message left by another individual. It is both
a broad statement in favor of union representation for the
Respondent’s employees, and a criticism of recent man-
agement of the Company. His initial statement signals
his point of view: “Why do you continue to try to bundle
reasons why a union is suspect and not so desirable for
EIT employees?” He then characterizes “the bad things”
IBM and the Respondent had done “to the employees
and their families and the community at large,” and spe-
cifically refers to “the job losses.” He also offers his
view of the current state of the Company: “This business

11 Sierra Publishing Co. v. NLRB, 889 F.2d. 210, 217 (9th Cir.
1989).
12 We note that White obviously could not control what portion of
his interview would be quoted or the precise context in which his
statements might be framed.
is being tanked” and “put into the dirt” by the current
ownership.
White’s posting identifies two employment controver-
sies involving the Respondent and its employees.
White’s statement regarding “job losses” clearly refers to
the layoff of the 200 employees that had occurred only 2
weeks earlier, and had been widely publicized in the lo-
cal media. In addition, White’s message clearly referred
to the ongoing dispute over union representation at the
Company; the Union’s 3-year effort to organize the
Company’s employees was common knowledge. And it
is evident from the tenor of White’s message that the
Union’s campaign was controversial. Thus, given the
context of the posting, the requisite nexus between
White’s comments and a labor dispute is apparent. More-
over, White’s message was a manifestly partisan expres-
sion of opinion, and it would certainly be read accord-
ingly. Therefore, his internet message met the Jefferson
Standard “dispute” requirement, and it is entitled to pro-
tection under the Act.
3. Respondent’s exceptions
In its exceptions, the Respondent acknowledges that
White’s prounion comments in the posting “were clearly
protected,” and argues solely that the egregious nature of
his remarks, not their lack of connection to a labor dis-
pute, caused him to lose the Act’s protection. However,
the Act permits certain criticism in connection with a
labor dispute, if readers or listeners can grasp the connec-
tion. Once this nexus is established, such statements are
not inherently unprotected.13 White’s references to the
Respondent “being tanked” and “put into the dirt” in the
posting, and to “gaping holes” and “voids in the critical
knowledge base” in the newspaper article, were “not so
misleading, inaccurate, or reckless, or otherwise outside
the bounds of permissible speech, to cause [him] to lose
the Act’s protection.”14 The Board has permitted far
more offensive comments to retain their protected char-
acter in similar circumstances.15 In context, White’s

13 Our dissenting colleague would find, in effect, that there was no
connection between White’s comments and the labor disputes in this
case, as set forth in the newspaper article and the internet posting. We
disagree. As discussed above, the context of the article and of the post-
ing—and not simply an evaluation of White’s statements in isolation—
makes the required nexus clear. Moreover, as we have said, a layoff
affects those who remain working, not just those laid off. The remain-
ing employees, White for example, have a legitimate employment
interest in the continuing viability of the Company after the layoff
which may be expressed through protected speech.
14 Titanium Metals Corp., 340 NLRB 766, 766 fn. 3, (2003), enf. de-
nied on other grounds 392 F.3d 439 (D.C. Cir. 2004).
15 See Titanium Metals, supra at 770, 774 (employee’s newsletter
that referred to the respondent’s supervisors as “Public Enemy Number
One,” as “secret police” that “might kick down your door,” as the “Dy-
namic Duo,” and as “Howdy Doody and Buffalo Bob,” and described
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD452
statements evince no more than the kind of bias and hy-
perbole that the Board has found within the acceptable
limits of Section 7 in Jefferson Standard situations.16
The Respondent also argues that White’s comments
came at a fragile moment in the Company’s develop-
ment, i.e., as it was beginning to establish itself competi-
tively. We acknowledge the Respondent’s situation. But
its sensitivity to the possible impact of White’s com-
ments cannot serve to limit his statutory right to appeal to
the public. See, e.g., Allied Aviation Service Co., supra,
248 NLRB at 231.
Accordingly, we conclude, in agreement with the
judge, that White’s statements were not so disloyal, reck-
less, or maliciously untrue as to lose the Act’s protection,
and that the Respondent violated Section 8(a)(1) by
warning, threatening, and then discharging him because
of them.17
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Endicott Interconnect Tech-
nologies, Inc., Endicott, New York, its officer, agents,
successors, and assigns, shall take the action set forth in
the Order.
CHAIRMAN BATTISTA, dissenting.
The issue in this case is whether public statements
made by employee Richard White on two occasions are
protected under the Act or, as argued by the Respondent,
constitute disloyal misconduct warranting his discharge
for cause. Contrary to my colleagues, I would reverse
the judge and find that White’s November 15 and De-
cember 1, 2002 statements did not speak of a “labor dis-
pute” within the meaning set forth in NLRB v. Electrical
Workers Local 1229 (Jefferson Standard), 346 U.S. 464

one of them as “trying to sink his canoe and ours too,” found pro-
tected); Emarco, Inc., 284 NLRB 832, 833–834 (1987) (two employ-
ees’ comments to a client of the respondent that the respondent “can’t
finish the job,” and that the respondent’s president was “no damn good”
and a “son of a bitch,” found not to exceed the protection of the Act).
See also Allied Aviation Service Co. of New Jersey, 248 NLRB 229,
231 (1980), enfd. mem. 636 F.2d 1210 (3d Cir. 1980); Community
Hospital of Roanoke Valley, 220 NLRB 217, 220, 223 (1975), enfd.
538 F.2d 607 (4th Cir. 1976).
16 See, e.g., El San Juan Hotel, 289 NLRB 1453, 1455 (1988);
Emarco, supra at 834.
17 The complaint alleged that the Respondent’s disciplinary actions
against White violated Sec. 8(a)(3) as well as Sec. 8(a)(1). The judge
dismissed the 8(a)(3) allegations, finding insufficient proof of antiunion
animus. The General Counsel excepted. We find it unnecessary to
consider the 8(a)(3) allegations in light of our finding that the Respon-
dent’s conduct violated Sec. 8(a)(1). See Emarco, supra at 835 fn. 18,
citing NLRB v. Burnup & Sims, 379 U.S. 21 (1964). See also Richboro
Community Mental Health Council, 242 NLRB 1267, 1268 fn. 12
(1979).
(1953), and its progeny. In addition, I would find that
White was discharged for cause because of his disloyal
and disparaging statements against the Respondent.
Under Jefferson Standard, supra, employee appeals
concerning employment can be protected if the em-
ployee’s message makes clear that a labor controversy is
involved. In Jefferson Standard, the Supreme Court held
that a television station lawfully discharged a group of
technicians for creating and distributing handbills dispar-
aging the quality of the station’s broadcasting. In finding
the technicians’ conduct outside the protection of the
Act, the Court noted that although there was an ongoing
labor dispute in which the employees had the protected
purpose of gaining a collective-bargaining concession
from the employer, “‘[t]hat purpose . . . was undis-
closed.’”1 In other words, readers of the handbill were
not made aware that a labor controversy was involved,
thus, preventing a fair evaluation of the nature of the
appeal and the reliability of the information. Accord-
ingly, the public’s reasonable perception of the techni-
cians’ handbill was critical to the determination of
whether the employees’ communication was a lawful,
albeit partisan, exercise of Section 7 rights, or a mislead-
ing, disloyal attack on the economic well being of the
employer who paid their wages. In cases of this kind,
therefore, to avoid an unwarranted threat to a company’s
business based on a misapprehension of the nature of the
communication, the employees’ message must make
clear that a labor controversy is involved. At that point,
“third parties who receive appeals for support in a labor
dispute will filter the information critically so long as
they are aware it is generated out of that context.”2
Thus, under Jefferson Standard and its progeny, state-
ments to third parties are protected only “where the
communication indicates that it is related to an ongoing
labor dispute between the employees and the employers
and the communication is not so disloyal, reckless or
maliciously untrue as to lose the Act’s protection.”
Mountain Shadows Golf Resort, 330 NLRB 1238, 1241
(2000) (Mountain Shadows I).
In the instant case, White’s comments reported in the
November 16 newspaper article did not refer to a labor
dispute.3 While I agree with my colleagues’ assertion
that the layoff precipitating White’s comments was a
term or condition of employment, it does not follow that
White’s comments were protected. The labor dispute
here was about the plight of the employees who were
being laid off, and about the Union’s opposition to that

1 346 U.S. at 472, quoting the Board’s underlying decision, 94
NLRB 1507, 1511 (1951).
2 Sierra Publishing Co. v. NLRB, 889 F.3d 210, 217 (9th Cir 1989).
3 The article is set forth in the majority opinion.
ENDICOTT INTERCONNECT TECHNOLOGIES, INC. 453
layoff. However, White’s remarks in the article made the
different point that the layoff would be detrimental to the
quality of the Respondent’s product. Indeed, as the arti-
cle says, White was not even among the laid-off employ-
ees.
Concededly, as my colleagues point out, other pas-
sages in the article refer to the laid-off employee’s cha-
grin as to the effect that the layoff would have on them.
However, White was not disciplined for what the article
said. He was disciplined for his views, as reported in the
article. And those views concerned his opinion about the
condition of the Company. Nor was he accused of “feed-
ing” these passages to the writer of the article. Rather,
White was discharged for his disparaging remarks about
the Company, as they were reported in the article.4
I would therefore examine White’s comments in this
context. He is quoted as saying that there were “‘gaping
holes in this business’” as a result of the layoff. Further,
he explained that the loss of certain personnel left “voids
in the critical knowledge base for the highly technical
business.” White’s comments lack any reference to a
labor controversy. They were also harmful, disparaging,
and disloyal to the Respondent. The comments sug-
gested that the Respondent, a manufacturer of highly
technical computer circuit boards, no longer had the
skilled and knowledgeable personnel to continue produc-
ing that product. Such a statement, made by an insider,
would foreseeably have a devastating impact on the repu-
tation of an employer. Indeed, the potential damage
done to the Company’s reputation is evidenced by the
fact that the Respondent’s principal customer, IBM,
called immediately to inquire about the truth of White’s
assertions. Thus, the Respondent was justified in warn-
ing White that he would be discharged if he disparaged
the Company again in the future.
White’s internet posting also lacked a clear nexus to
the labor dispute concerning the layoffs.5 Although there
is a reference to a potential loss of jobs, the major thrust
of the posting is an attack on a third-party posting and on

4 My colleagues assert that White’s comments must be analyzed in
the context in which they are made, and note that the article itself refer-
ences the ongoing labor dispute. In so doing, however, the majority
misses the larger point. Regardless of whether the article itself ad-
dressed a labor dispute, White’s statements made a different point.
Mountain Shadows I, 330 NLRB at 1240. On the face of the reported
comments, White’s statements referenced neither an ongoing em-
ployer/employee dispute, nor his involvement in the Union. Thus,
there was no way for the readers of his remarks, which remarks ques-
tioned the employer’s abilities to continue operating, to read them with
a grain of salt. Concededly, the article itself spoke of the layoff. How-
ever, that was the choice of the writer of the article. White was dis-
charged for his remarks as related in the article, not for the other com-
ments of the article-writer.
5 The posting is set forth in the majority opinion.
others who were perceived as being antiunion. The one
clear reference to the Respondent’s layoff is not about
the plight of those laid off, but rather about the Respon-
dent’s business. The reference is a disparaging one
(“This business is being tanked by a group of people that
have no good ability to manage it.”). In addition,
White’s comments were also insubordinate, in light of
the Respondent’s explicit warnings to White to cease
from making such disloyal statement to the public.
Accordingly, I would find that both of White’s com-
munications were unprotected by the Act because they
failed to reference an ongoing labor dispute and because
they were disloyal to the Respondent. Divested of Sec-
tion 7 protection, the statements constituted simply “a
sharp, public, disparaging attack upon the quality of the
Company’s product and its business policies, in a manner
reasonably calculated to harm the Company’s reputation
and reduce its income.”6 The Respondent was, therefore,
fully within its rights to discipline White because of the
November 16 article, and to discharge him for cause be-
cause of the December 1 posting.7
Alfred Norek, Esq., for the General Counsel.
Raymond Pascucci, Esq. (Bond, Schoeneck & King, PLLC), for
the Respondent.
Carolyn Zapanta, Esq. (Semel, Young & Norum), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on June 10, 2003, in Binghamton, New York.
The complaint herein, which issued on April 29, 2003, and was
based upon an unfair labor practice charge and an amended
charge filed on February 24 and April 25, 2003, by Alliance
@IBM/Communications Workers of America, Local 1701,
AFL–CIO (the Union), alleges that Endicott Interconnect
Technologies, Inc. (the Respondent) violated Section 8(a)(1)
and (3) of the Act by threatening employee Richard White with
discharge on about November 19, 2002,1 and December 19, by
issuing him a verbal warning on November 19 and by discharg-
ing him on December 19, because of his Union and protected
concerted activities.2
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that it has been engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.

6 Jefferson Standard, 346 U.S. at 471.
7 Id. at 477–478; see also Mountain Shadows II, 338 NLRB 581
(2002).
1 Unless indicated otherwise, all dates referred to herein relate to the
year 2002.
2 The joint motion of counsel to correct the transcript is granted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD454
II. LABOR ORGANIZATION STATUS
The Union was established in 1999 in an effort to organize
the employees of IBM employed in the Endicott/Binghamton,
New York area. Lee Conrad, the Union’s national coordinator
and organizer, testified that the Union, a local union affiliated
with the Communications Workers of America, exists to deal
with employers concerning grievances, labor disputes, wages,
hours of employment, and conditions of employment, and that
employees of IBM/the Respondent participate as officers and
chapter representatives. In fact, sometime in late November or
early December, White was elected to the Union’s governing
council. I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE FACTS
A. The Sale of IBM in Endicott to the Respondent
William Maines, co-owner and chairman of the board of di-
rectors of the Respondent, testified about the sale of a portion
of the IBM operation in Binghamton-Endicott to the Respon-
dent. IBM was the largest employer in the area with about 4000
employees. He learned that IBM wanted to divest itself of the
manufacturing part of its operation in the area which produced
printed circuit boards, because of its high labor costs, and to
concentrate on other more profitable portions of its business.
Maines and a group of local businessmen and friends discussed
the fact that IBM was actively marketing its Endicott operation
and the importance “of maintaining those jobs to the commu-
nity. Also, that there might be a nice business opportunity to
have an ongoing profitable business.” They contacted IBM as
well as some New York State officials to facilitate some meet-
ings. Maines and his group commenced negotiations with IBM
in about March, and on June 30, they signed a contract with
IBM with the closing of the agreement scheduled for about
November. Because of their commitment to maintain the jobs
in the area, the purchasers received assistance, incentives, and
tax credits, based upon job retention, from New York State.
Maines testified that the investors commitment was about $75
million and the State incentives were a few million dollars. The
closing took place on about November 1. Since the closing, the
Respondent’s sales to IBM has comprised about 60 percent of
its business and its sales to Sun Microsystems has comprised
about 30 percent.
B. Events of July 8
On July 8, Maines conducted series of meetings with the
IBM employees in the area; Conrad and Larry Davis, a retired
IBM employee who was employed part time by the Union,
distributed leaflets to employees entering the meetings. The
leaflets were union authorization cards, stating: “IBM looked
out for their interests The new owners are looking out for theirs
ORGANIZE- TO LOOK OUT FOR YOURS!” At the meetings
with the employees, Maines distributed a document with a
summary of benefits stating that the employees’ pay and bene-
fits would remain comparable to what they were with IBM.
Later that day, Maines came to the union office; Conrad testi-
fied that Maines said that Conrad was on Respondent’s prop-
erty when he was distributing the leaflets. Maines also said that
he didn’t like the tone of the leaflet that he was looking out for
his interest and he gave Conrad the document he had given his
employees that day saying that the employees’ benefits would
remain the same. Conrad said that his interest was to look out
for the interest of the employees and Maines said, “If you esca-
late, we’ll escalate.” Maines told Conrad that his other business
was nonunion, and he didn’t want to try to build up the new
business while worrying about a union organizing campaign.
Maines testified that he went to the Union’s office that day to
respond to a leaflet the Union handed out to employees saying
that they were waiting to see if the Respondent was being truth-
ful with the employees. Maines gave Conrad a copy of the
benefit summary that he gave to the employees showing that
their new benefits would be comparable and Conrad said that
he already had a copy of the document. Maines also told Con-
rad that he would be happy to answer any questions that he had:
“Feel free to contact me directly.” Shortly thereafter, Maines
received an undated letter from Linda Guyer, the union presi-
dent, which stated, inter alia:
I hear you stopped by the Alliance @ IBM office in
Endicott on Monday to express your concerns and to say
hello. I also understand that your meeting with Lee Conrad
and Rick Roscoe was very productive.
We appreciate your approach of open dialogue and
your listening to our concerns and efforts around the EIT
employees’ benefits and work environment.
You are most welcome to visit our office again. Be-
cause of our need to protect the confidentiality of workers
who come to our office, would you please make an ap-
pointment for any future visits.
C. Layoffs on about November 15
On about November 15, the Respondent announced a layoff
of approximately 200 employees. White testified that between
30 and 40 percent of those who were laid off were managerial
employees. The rest were production employees, administrative
employees, and engineers. Maines testified that the layoffs
were necessary because the overhead made it impossible for the
Respondent to be profitable. It was decided where cost savings
were most needed and a total of 200 employees, or about 10
percent of the work force, was laid off. About 60 percent of
those who were laid off were managerial employees. In addi-
tion, maintenance and sanitation employees, secretarial em-
ployees, and engineers were also laid off.
D. November 16 Newspaper Article and Its Aftermath
On November 15, Conrad called White and told him that he
had been called by a reporter for a local newspaper who wanted
to speak to White about the layoff. Sometime that day, White
called the reporter and answered the reporter’s questions. On
the following day, there was an article in the newspaper about
the layoff, quoting White and others. The article states, inter
alia:
The firing of 200 people at the fledgling Endicott In-
terconnect Technologies two weeks after its birth was a
“pragmatic” decision by James J. McNamara, Jr., presi-
dent and chief executive officer.
“I have a fiduciary responsibility to make this business
profitable,” McNamara said, just hours after notifying
ENDICOTT INTERCONNECT TECHNOLOGIES, INC. 455
scores of mid-level managers, engineers and support peo-
ple on Friday morning that they no longer had jobs.
Those affected by Friday’s action are not in a forgiving
mood. They are unwilling to accept that the cutbacks are
in the best interest of the company. Many feel a sense of
betrayal in their enthusiasm for a new start with this IBM
successor company. Other workers believe that they were
fed a line of false promises when the deal to sell the IBM-
Endicott site to local investors was announced in July.
This is greed with a capital G,” said Mike McKercher,
who spent 26 years with IBM and two weeks with Endi-
cott Interconnect. “I walked by Thomas Watson’s picture
and you could see tears running down his (face).”
Endicott Interconnect executives said they had no
choice in the matter. Depressed production volumes don’t
support the infrastructure the 15-day-old company inher-
ited from IBM Corp. As an independent company without
the corporate bureaucracy of the entrenched computer
maker, Endicott Interconnect Technologies could slice off
a layer of management without an effect on the customer,
McNamara said.
Some employees disagree, saying the decision made
Friday will hurt the company over the long term.
“There’s gaping holes in this business,” said Rick
White, an employee with 28 years at the Endicott plant
who, with nearly 2,000 other people, recently transferred
from IBM to Endicott Interconnect.
White, who kept his job, said development and support
people with specific knowledge of unique processes were
let go, leaving voids in the critical knowledge base for the
highly technical business.
McNamara, for his part, doesn’t dispute that Friday’s
action will produce more work and more responsibilities
for others in the plant. Managers with one area of respon-
sibility may be asked to oversee one or two other areas, he
said. Cutting a management layer, however, will give the
remaining workers a larger role in the business, he said.
Maines testified that after reading this newspaper article, he had
a number of concerns:
I was very concerned that we would have an employee mak-
ing the negative comments about our ability to be successful
at a very fragile and delicate time . . . I was concerned about
the community at large in terms of thinking that we weren’t
going to be successful. I was thinking about the retained em-
ployees that had their jobs there, thinking they would be much
less secure. But most importantly I was concerned about cus-
tomers.
He testified that shortly after the newspaper article appeared, he
received a telephone call from an individual in charge of IBM’s
microelectronics division, who handles the purchasing from the
Respondent. He asked if there were gaping holes at the com-
pany, and Maines assured him that there were no gaping holes,
that the layoffs were well thought out, and “that we had all the
core skills and competencies that we needed to perform for
him.”
On November 19 White was called to Maines’ office. White
testified that Maines said that he read the newspaper article
where White said that there were gaping holes at the Company,
and he asked White why he said that. White said that he was
talking to the reporter as a union representative and was trying
to convey the pain that the employees were experiencing.
Maines told him that the deal with IBM was an expensive and
difficult situation for him and he couldn’t understand why
White would say that. White said that he wasn’t accusing him
of being a bad businessman, but was trying to express the pain
of the laid-off employees. Maines said that the layoff was diffi-
cult for him, as well, but it was the only option that the Re-
spondent had. He also said that he made sure that no union
members were involved in the layoff, but that he was surprised
that White was still employed by the Respondent, “because he
couldn’t believe that somebody that would say that was still
employed.” White testified further:
He told me that he didn’t want somebody working for
his company that had an attitude like mine, and he said if
you don’t have your heart in this job, 100% . . . I don’t
want you to work here. But, he said, that’s not a threat.
And I told him I had my heart 100% into that job and I,
100%, supported the company, I wanted it to succeed. I
told him I felt that the lay-off of those 200 people, the ex-
perts, the people that knew what they were doing, was not
a good thing.
He asked me or he told me that he didn’t want me to
talk to the newspapers and he said, I don’t want you to talk
to the newspapers . . . and see the company’s name in the
newspapers. And I said, I’m on board with that and that
won’t happen.
Before leaving Maines’ office, they shook hands and White
said that he had a right to his opinion, and Maines said, “Yes,
you do.” He does not recall Maines saying that if White again
criticized him or the Respondent, he would not be able to work
with him further, and he would be terminated, nor does he re-
call Maines saying what would happen if White again spoke to
the newspaper about the company.
Maines testified that he spoke to White in his office on No-
vember 19. He told White that he was disappointed that White
would make comments that the Company’s success was at risk
and that it had gaping holes. The investors had a lot of money
at risk and they were working hard to make it work. The layoff
was unfortunate, but there was no alternative. He told White:
I am not accustomed to working with an individual who is
publicly trashing the owners of the company and questioning
the ability of the company to survive in our management abil-
ity, and it was unacceptable, that it was in violation of the
company handbook, and that if it were to happen again, that
he would be terminated, that I would not be able to work with
him.
White responded that he was entitled to his opinion, and
Maines said that while he was entitled to his opinion, he was
not entitled to make disparaging remarks about the Company
and he wouldn’t tolerate it. He never forbade White from
speaking to the press. “But when he makes unfactual, un-
founded, disparaging remarks that are read by customers, that
literally could put us out of business overnight, when they are
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD456
incorrect, I told him that I would not tolerate that.” White re-
sponded: “I’m on board, it won’t happen again.”
E. White’s December 1 Web Site Message
Due to the large amount of interest in the IBM sale to the
Respondent, the local newspaper that printed the November 16
article, maintained a public forum web site where people could
contribute or read messages about the IBM-Respondent issue.
In order to write letters to this forum, individuals had to obtain
a user ID and a password, permitting them to contribute to this
public forum. White did this, and he was a contributor to the
forum. He testified that some antiunion messages appeared on
this forum, “so I decided to post a message to rebut what he
was talking about.” The following message appeared on the
forum on December 1 under White’s name:
To Mr. House:3 Why do you continue to try to bundle reasons
why a union is suspect and not so desirable for EIT employ-
ees? Why do you site all the bad things about Unions, and ig-
nore all the bad things that IBM and EIT have done to the
employees and their families and the community at large?
Isn’t it about time you seriously thought about the fact that no
one else will help to stop the job losses, and root for the work-
ers of the community instead of defending the likes of Bill
Maines, George Pataki, and Tom Libous?4 Hasn’t there been
enough divisiveness among the people working in this area?
Isn’t it about time we stood up for our jobs, our homes, our
families and our way of life here? Do you want to sit by and
watch this area go to hell and dissolve into a welfare town for
people over 70? This business is being tanked by a group of
people that have no good ability to manage it. They will put it
into the dirt just like the companies of the past that were
“saved” by Tom Libous and George Pataki, i.e., “Telespec-
trum,” “IFT (Flex).”5 When are you going to get it??? A un-
ion is not just a protection for the employees. It’s an organiza-
tion that collectively fights for improvements and benefits for
working people in communities like ours. Forget Jimmy
Hoffa and the mob. Those people and situations are stereo-
types of fools who chose to undermine the very system they
vowed to protect. They are the minority and always have
been. Look around. Do you think the government will help
you when you lose your job and your house? Think again. A
union is the beginning of a community standing up for itself.
It’s time is now.
Maines testified that he first became aware of White’s De-
cember 1 letter to the newspaper’s chat room about 2 weeks
later when it was downloaded by the Respondent’s human re-
sources department. After reading White’s letter, Maines was
concerned because he had previously given White the warning

3 White testified that he doesn’t know House, except to the extent
that he was posting antiunion messages on this public forum.
4 Libous, a State senator representing the area, and Governor Pataki,
according to White’s testimony, provided incentives and assistance to
the Respondent in the sale from IBM.
5 White testified that Telespectrum and IFT (Flex) are two compa-
nies that were located on the IBM property in the area that performed
work for IBM. Telespectrum’s work force has been reduced to a frac-
tion of what it had previously been and IFT (Flex) is out of business.
that he was not to publicly trash the Company again, and if he
did it again he would be terminated. “And, lo and behold, there
it is, after he promised me that he is on board. . . . And here it
is, that he’s done it again”
F. December 19 Termination
On December 19, at about 4 p.m., White was told to go to
Maines’ office. He testified that Maines began the conversation
by saying, “I heard you made a comment.” When White asked
what comment, Maines gave me a copy of his statement that
appeared in the forum on December 1 and told White to read it.
White began reading it to himself and Maines told him to read
it out loud. When White read the portion that said that the busi-
ness was being tanked by the likes of Maines and others,
Maines said, “Right there, right there. I told you not to say this.
I told you not to talk to the press and I told you that you would
be terminated if you said this. I’m tired of this fucking bullshit
with you, I told you that you would be terminated.” White in-
terrupted Maines and said that he had not told him that he
would be terminated; rather, he said that he didn’t want him
talking to the press, and that he had a right to his opinion.
Maines said, “I told you that you would be terminated and
you’re terminated.” Maines got up and walked out of his office.
A vice president came into the office and said that White
should wait, that he would get somebody to escort him back to
his desk. White said that he knew where his desk was, and he
walked back to his desk and took all of his belongings and left
the facility. Maines testified that he had warned White on No-
vember 19 that his statements trashing the Respondent were not
acceptable and were in violation of the Respondent’s employee
handbook, and if it happened again, he would be fired. After
reading the December 1 article by White, especially the portion
that refers to Maines and others tanking the business, he deter-
mined that White had done it again, and he fired him for that
reason.
IV. ANALYSIS
The complaint herein alleges that the statements that White
made in the November 16 newspaper article, and the December
1 chat room, “were an outgrowth of discussions White had with
other employees and/or were taken in order to induce collective
action on the part of his fellow employees.” The complaint
further alleges that the November 19 verbal warning and the
December 19 termination were caused by White’s statements in
the newspaper and the chat room on November 16 and Decem-
ber 1 and in order to discourage other employees “from engag-
ing in these and other protected concerted activities.” In addi-
tion, the complaint alleges that White was warned on Novem-
ber 19 and was fired on December 19 because he joined and
assisted the Union and engaged in protected concerted activities
and to discourage other employees from doing so, in violation
of Section 8(a)(1) and (3) of the Act.
Initially, I find that there was no “traditional” 8(a)(3) viola-
tion herein because there was a failure to establish any union
animus. White testified that when he met with Maines on No-
vember 19, Maines told him that he made sure that no union
members were included in the November 15 layoff. In addition,
although Maines came to the union office on July 8 to dispute
ENDICOTT INTERCONNECT TECHNOLOGIES, INC. 457
the contents of the union leaflets distributed to the employees at
the plant that day, the meeting ended in a nonadversarial way,
as confirmed by Guyer’s letter to Maines. The only indication
of union animus is Conrad’s testimony that at this meeting,
Maines told Conrad, “If you’ll escalate, we’ll escalate.” I find
this insufficient proof of union animus, especially considering
Guyer’s letter that followed the meeting.
The Respondent defends that it discharged White for disloy-
alty to the Company and for disparaging the Company and its
products. In addition, it defends that White was warned on
November 19 not to repeat what he had done on November 16
and that by placing his letter on the newspaper’s chat room on
December 1, he violated this agreement with Maines. Finally,
the Respondent states that Maines and the other individuals
who purchased the operation from IBM have $75 million in-
vested in the Respondent. This investment could be jeopardized
by individuals reading that there were “gaping holes” in the
Respondent’s operation and the business was being “tanked” by
Maines and the other investors.
In NLRB v. Electrical Workers Local 1229, 346 U.S. 464
(1953), more commonly referred to as Jefferson Standard, the
television station and the union representing technicians had
reached an impasse in negotiations and the union commenced
picketing while its members continued working. When that did
not succeed, the union changed tactics and “launched a vitriolic
attack on the quality of the company’s television broadcasts”
with handbills inferring that the station was treating the city as
a second-class city. The handbills made no mention of the labor
dispute and the employees continued working during the leaf-
leting. The station fired 10 of the technicians. The Board, at 94
NLRB 1507, 1511,1512 (1951), found that these leaflets were
not protected: “In our judgment, these tactics, in the circum-
stances of this case, were hardly less ‘indefensible’ than acts of
physical sabotage. . . . We . . . do not decide whether the dis-
paragement of product involved here would have justified the
employer in discharging the employees responsible for it, had it
been uttered in the context of a conventional appeal for support
of the union in the labor dispute.” The Supreme Court agreed
with the Board, stating: “There is no more elemental cause for
discharge of an employee than disloyalty to his employer.” The
Court also stressed that the union never identified the handbill’s
message with its labor dispute with the company: “Their attack
related itself to no labor practice of the company. It made no
reference to wages, hours or working conditions. The policies
attacked were those of finance and public relations for which
management, not technicians, must be responsible. . . . It at-
tacked public policies of the company which had no discernible
relation to that controversy. . . . It was a concerted separable
attack purporting to be made in the interest of the public rather
than in that of the employees.” 346 U.S. at 476–477.
In Sierra Publishing Co. v. NLRB, 889 F.2d 210 (9th Cir.
1989), because the employees were unhappy with the progress
of bargaining, the union sent a letter to 50 of the newspaper’s
main retail advertisers stating, inter alia:
Who wants a one-newspaper town? The readers don’t.
The politicians don’t. As a business person and advertiser,
you don’t.
And we, the employees of the Sacramento Union
don’t. Perhaps only the Bee [the other local newspaper]
would like it.
For nearly a year and a half we have been trying to get
a fair contract with the Sacramento Union. We’re not ask-
ing for more money. In fact, we expect to continue living
with a pay cut—but not the 15% to 20% cut that was im-
posed on us a year ago.
During these trying times of bargaining, the paper’s
circulation has plummeted, good employees have left for
better jobs, advertising has suffered. The newspaper as a
whole is speeding downhill.
We, the employees, would like to get the newspaper
back on track. . . . If something positive doesn’t happen
soon, we may all be facing the death of the Sacramento
Union.
We think we can turn the paper around, but it is time
for you, as a member of the community to lend a hand.
Talk it over with . . . the editor of the Union.
SACRAMENTO UNION EMPLOYEES NEGOTIATING
COMMITTEE
The employer took offense at this letter and fired the four-
named members of this committee for disloyalty. The adminis-
trative law judge and the Board found that the letter to the ad-
vertisers constituted protected concerted activities, and that by
firing the four employees the employer violated Section 8(a)(1)
of the Act. The court agreed, distinguishing Jefferson Standard,
saying, 889 F.2d at 216 :
Jefferson Standard has been read to hold that if the appeal
“disparages” the employer’s product, as opposed to criticizing
the employer’s labor practices, it is so disloyal as to lose Sec-
tion 7 protection. However, later cases confined the reach of
this exclusion, and made clear that Jefferson Standard was not
to be read to equate criticism with disloyal product dispar-
agement. Instead, appeals to third parties forfeit Section 7 pro-
tection only if their connection to the employees’ working
conditions is too attenuated or if they are unrelated to any
grievance which the workers may have. [Citations omitted.]
The employer defended that the letter amounted to product
disparagement and was therefore unprotected. The court dis-
agreed, supra at 217: “First and most important, there is no
dispute that the letter was related to the labor dispute and to the
employees’ efforts to improve their working conditions. This
feature was central to the Supreme Court’s reasoning in Jeffer-
son Standard, and has continued to be the focus of NLRB and
judicial analysis.” The Court, at footnote 9, referred to the fact
that the letter was written on union letterhead, was signed by
union members and referred to the failed negotiations. The
Court stated further:
If unions are not permitted to address matters that are of direct
interest to third parties in addition to complaining about their
own working conditions, it is unlikely that workers’ undis-
puted right to make third party appeals in pursuit of better
working conditions would be anything but an empty provi-
sion. Moreover, extending Section 7 protection in this direc-
tion does not pose an unreasonable threat to employers; third
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD458
parties who receive appeals for support in a labor dispute will
filter the information critically so long as they are aware it is
generated out of that context.
In response to the employer’s defense that the letter was dispar-
aging because it referred to circulation plummeting and good
employees leaving the paper, the court stated: “Once again,
however, the effect of Jefferson Standard was not to equate
every critical comment with unprotected disloyalty. The letter
must be evaluated in its entirety and in context.”
In Allied Aviation Service Co. of New Jersey, 248 NLRB 229
(1980), an employee was fired for writing two letters to the
employer’s customers questioning certain safety issues relating
to the maintenance of their aircraft. The Board reversed the
judge’s finding that these letters were not protected, saying,
“[T]he Board has found employee communications to third
parties seeking assistance in an ongoing labor dispute to be
protected where the communications emphasized and focused
upon issues cognate to the ongoing labor dispute.” The Board
cited Richboro Community Mental Health Council, 242 NLRB
1267 (1979), and Community Hospital of Roanoke Valley, 220
NLRB 217 (1975), enfd. 538 F.2d 607 (4th Cir. 1976), where
the communications to the third parties referred to a decrease in
the quality and quantity of service to the clients and to the ade-
quacy of patient care at the hospital. Both messages were found
to be protected. The Board stated: “In both cases, therefore, the
touchstone was not whether the communication constituted a
virtual carbon copy of the specific arguments raised with the
respondent, but was, rather, whether the communication was a
part of and related to the ongoing labor dispute.” The Board
then addressed the employer’s argument that the letters were a
disparagement of its product or reputation:
In determining whether an employee’s communication to a
third party constitutes disparagement of the employer or its
product, great care must be taken to distinguish between dis-
paragement and the airing of what may be highly sensitive is-
sues. There is no question that the Respondent here would be
sensitive to its employees raising safety matters with its airline
customers. Yet, we have previously held that, “absent a mali-
cious motive, [an employee’s] right to appeal to the public is
not dependent on the sensitivity of Respondent to his choice
of forum.”
In Community Hospital of Roanoke, supra, the Board and the
court found that the hospital violated Section 8(a)(1) of the Act
by issuing a warning to one employee and refusing to employ
another because of a television interview where they stated that
there were not enough nurses to cover a unit at the hospital and
that the problem was directly related to the salaries and benefits
provided by the hospital. The court said that these statements
were admittedly true, and “they were directly related to pro-
tected concerted activities then in progress.”
Emarco, Inc., 284 NLRB 832 (1987), involved an employer
who was consistently in arrears in its payments to the union’s
welfare and pension plan. After being informed by the bank
that, because the employer was 5 months late in its payments,
the bank would no longer honor certain bills and benefits and
that the employees would be ineligible for certain benefits, the
employees wrote to the employer that unless the employer was
current in its payments by a certain date, they would not report
for work. Although the employer showed the employees that he
was mailing the check prior to the specified date, the check was
never received by the bank and the employees refused to work.
The check was not received by the bank until about 17 days
after the original deadline, at which time the strike concluded.
However, because the employer alleged that it was having
problems resuming its operations, two employees were not
returned to work immediately. Before returning, however, they
visited one of the employer’s jobsites and told the general con-
tractor that the employer was five to 6 months delinquent on
payments to the union’s health and welfare fund, that “these
people never pay their bills . . . can’t finish the job . . . is no
damn good,” and that ‘this job is too big for them . . . . It will
take a couple of years to finish the job.” They also referred to
their boss as “a son of a bitch.” After the employer learned of
these statements, he refused to recall these two employees. The
Board found that this refusal to recall violated Section 8(a)(1)
of the Act. As the statements that they made were made on the
jobsite and in response to questions about the cause of the
strike, the remarks “were made in the context of and were ex-
pressly linked to the labor dispute.” Further the Board found
that their remarks did not lose the protection of Section 7 of the
Act: “[T]he remarks . . . name-calling aside, were not malicious
falsehoods, but reflected to some extent the Respondent’s ac-
tual inability to meet its financial obligations, which concern
was at the heart of the employees’ labor dispute with the Re-
spondent.” Finally, the majority of the Board responded to the
dissenting opinion that there was no “labor dispute” other than
the strike itself:
[W]e believe our dissenting colleague’s conclusion that there
was no evidence of a labor dispute other than the strike itself,
results from an overly restrictive view of what constitutes a
“labor dispute.” The definition of labor dispute under Section
2(9) of the Act includes “any controversy concerning terms,
tenure or conditions of employment” [emphasis added].
Surely, the employees’ actions, which included complaining
individually and through union intervention, and which were
taken in response to the Respondent’s chronic failure to make
contractually mandated timely payments to the welfare and
pension plan, fall within the purview of that section.
In a more recent case, Mountain Shadows Golf Resort, 330
NLRB 1238 (2000), and a Supplemental Decision at 338
NLRB 581 (2002), the Board succinctly restated the rule that it
has applied since Jefferson Standard. In order to have the pro-
tection of the Act, the statement must make reference to the
organizational attempt, the labor controversy or to the collec-
tive-bargaining process and, in addition, the statement cannot
be so disparaging of the company’s product and business poli-
cies that it is reasonably calculated to harm the company’s
reputation and reduce its income. The Board, 330 NLRB at
1241, found that the alleged discriminatee therein lost on both
counts and that therefore his March 5 handbill was unprotected:
“the March 5 flyer did not mention the problems the employ-
ees’ union was having negotiating with the Respondent, and
bore no indication that it was written by or on behalf of any
employee of the Respondent. Rather, the matters addressed in
ENDICOTT INTERCONNECT TECHNOLOGIES, INC. 459
the flyer related solely to the impact of the company’s capital
investment and other business practices on the quality of the
service provided to customers.” In addition, the flyer was not
protected because it suggested that the city turn over the man-
agement of the company’s facilities to one of its competitors. In
distinguishing these facts from Emarco, supra, the Board
stressed that in that matter the statements “were made in the
context of and were expressly linked to the labor dispute.” In
Mountain Shadows, supra, they were not.
In St. Luke’s Episcopal-Presbyterian Hospitals, Inc., 331
NLRB 761 (2000), enf. denied 268 F.3d 575 (8th Cir. 2001),
the hospital fired a nurse because of comments that she made
about the hospital on a television newscast. Statements attrib-
uted to her accused the hospital of cutting nurses’ shifts in order
to replace them with less qualified employees, thereby jeopard-
izing the health of mothers and babies at the hospital. The
newscast also noted that the nurses were fighting for collective-
bargaining rights in order to insure adequate patient care and
working conditions. The Board found that her statements were
protected because it was made in the context of statements
about the labor dispute, and nothing she said, “exceeds the
bounds of the protection of the Act. Indeed, the statements
made by Hollowood during the interview were neither disloyal,
recklessly made, nor maliciously false.”
White was threatened and was given a verbal warning on
November 19 because of his statements that appeared in the
newspaper on November 16, and he was fired on December 19
because of his December 1 statements contained on the news-
paper’s website devoted to the Respondent. I find that the
threat, the warning and the discharge violate Section 8(a)(1) of
the Act because both statements were protected under Section 7
of the Act.
Initially, I find that the situation in November and December
involving the Union and the Respondent constitute a labor dis-
pute within the meaning of Section 2(9) of the Act. The Union
had been attempting to organize the employees of IBM since
about 1999 and, since about July, had altered its aim to the
Respondent. When the Respondent announced the layoff of 10
percent of its work force on November 15, the situation became
a well-publicized dispute between the Respondent, those laid
off, and the Union over the necessity and/or propriety of the
layoff. The November 16 newspaper article clearly sets forth
the facts of the dispute and the positions of the Respondent, a
laid off employee, and White. McNamara referred to the layoff
as a “pragmatic” decision that he had to make so that the Re-
spondent would be profitable. White was certainly entitled to
respond to this by saying that the layoffs would leave “gaping
holes” in the business and that by laying off development and
support employees, the Respondent was “leaving voids in the
critical knowledge base” of the Company. In fact, according to
the newspaper article, McNamara did not dispute the fact that
the layoff would “produce more work and more responsibilities
for others in the plant.” Counsel for the Respondent, in his
brief, stresses that because the November 16 article does not
mention the Union, the statements made therein were unpro-
tected. I disagree. Although the article does not refer to the
Union, the subject of the article was what effect, if any, that the
layoff off 10 percent of the work force would have upon the
continuing viability of the Respondent, and, therefore, its em-
ployees. In addition, although the newspaper article does not
refer to White’s union affiliation, which White had no control
over, White called the newspaper reporter at the request of
Conrad, and was therefore speaking for the Union. I find that
his response, in opposing the layoff of his fellow employees,
constituted protected concerted activities, and that Maines
could not lawfully inhibit him from making such statements. I
further find that White’s comments in the article did not consti-
tute disparagement of the Respondent’s business so as to de-
prive him of the protection of the Act. The “gaping holes” and
“leaving voids” statements are certainly mild compared to the
statements that were found protected in Sierra Publishing, su-
pra, Allied Aviation, supra, Community Hospital of Roanoke,
and Emarco, supra. As these comments related to the labor
dispute between Respondent and the Union, I find that Maines’
threat and verbal warning to White on November 19 violated
Section 8(a)(1) of the Act.
On December 1, White wrote to the chat room on the news-
paper’s web site devoted to the Respondent. He testified that he
wrote it in response to antiunion messages that appeared on the
site. The alleged offensive portion of the message states:
Isn’t it about time you seriously thought about the fact that no
one else will help to stop the job losses and root for the work-
ers of the community instead of defending the likes of Bill
Maines, George Pataki and Tom Libous? Hasn’t there been
enough divisiveness among the people working in this area?
Isn’t it about time we stood up for our jobs, our homes, our
families and our way of life here? Do you want to sit by and
watch this area go to hell and dissolve into a welfare town for
people over 70? This business is being tanked by a group of
people that have no good ability to manage it. They will put it
into the dirt just like the companies of the past.
I find that this statement is protected as well. White was re-
sponding to some antiunion statements made to this web site
and defends the Union’s attempt to organize the Respondent’s
employees. Whether or not one agrees with his message that
only the Union can save the operation from going under, he had
the right to make it. Was his statement that the business was
being tanked by Maines and his business associates appropri-
ate? No. Was the statement true? Apparently, not. Was it pro-
tected? Yes. It did not lose the protection of the Act by dispar-
aging the Respondent’s owners. Saying that the business was
being “tanked” by Maines and his associates “that have no
good ability to manage it” was part of the continuing dispute
that the Union had with the layoff and its attempt to organize
the Respondent’s employees and was not so disparaging as to
lose the protection of the Act. Emarco, supra.
Maines and the Respondent cannot be too thin skinned. As
was discussed in Sierra Publishing, supra, third parties who
read these statements do not read it in a vacuum. The people in
the Endicott/Binghamton area have been familiar with the IBM
situation, which became the IBM-EIT situation, for a number of
years. White’s statement in the November 16 newspaper, and
his statement on the chat room on December 1, could be evalu-
ated by the people in the area, as well as by representatives of
IBM and Sun Microsystems, for what it is—campaign propa-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD460
ganda from one side of the dispute. By discharging White on
December 19, the Respondent violated Section 8(a)(1) of the
Act.
CONCLUSIONS OF LAW
1. The Respondent has been engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
threatening White with discharge because of his union and
protected concerted activities on November 19 and December
19.
4. The Respondent violated Section 8(a)(1) of the Act by is-
suing a verbal warning to White on November 19, and by dis-
charging him on December 19, in retaliation for his protected
concerted activities of criticizing the Respondents and its man-
agement.
THE REMEDY
Having found that the Respondent unlawfully threatened, is-
sued a verbal warning to White and fired him, I find that it must
be ordered to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act. It must
rescind the verbal warning and the discharge given him on
November 19 and December 19, and notify him in writing that
this has been done, and it must offer him reinstatement to his
former position, or if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or other
rights and privileges previously enjoyed. In addition, I recom-
mend that Respondent be ordered to make him whole for any
loss that he suffered as a result of the discrimination against
him, computed on a quarterly basis from the date of discharge
to the date of an unconditional offer of reinstatement to his
former position, less any interim earnings as set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact, conclusions of law and on the en-
tire record, I issue the following recommended6
ORDER
The Respondent, Endicott Interconnect Technologies, Inc.,
Endicott, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging, warning, threatening, or otherwise discrimi-
nating against its employees for engaging in protected con-
certed activities.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Richard
White full reinstatement to his former job, or if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges previ-
ously enjoyed, and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him, in the manner set forth above in the remedy sec-
tion of this decision.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge and warning,
and within 3 days thereafter notify White in writing that this
has been done and that the discharge and warning will not be
used against him in any way.
(c) 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 re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cilities in Endicott, New York, copies of the attached notice
marked “Appendix.”7 Copies of the notice, on forms provided
by the Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved 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 Respondent at
any time since November 19, 2002.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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.

7 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.”
ENDICOTT INTERCONNECT TECHNOLOGIES, INC. 461
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT threaten, issue warnings to, discharge employ-
ees, or otherwise discriminate against them because they en-
gaged in protected concerted activities under Section 7 of the
Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL within 14 days from the date of this Order, offer
Richard White full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position without
prejudice to his seniority or other rights and privileges previ-
ously enjoyed, and WE WILL make him whole for any loss that
he suffered as a result of our actions.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharge
of and warning to Richard White, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done and that
the discharge and warning will not be used against him in any
way.
ENDICOTT INTERCONNECT TECHNOLOGIES, INC.