ENTERGY NUCLEAR OPERATIONS

National Labor Relations Board - Administrative Judge Opinions

Jun 4, 2019

01-CA-153956 (N.L.R.B. Jun. 4, 2019)

JD–48–19
Plymouth, MA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ENTERGY NUCLEAR OPERATIONS, INC.,
and Cases 01-CA-153956
01-CA-158947
UNITED GOVERNMENT SECURITY 01-CA-165432
OFFICERS OF AMERICA, LOCAL 25
Emily Goldman, Esq.,
for the General Counsel.
Terence P. McCourt, Esq., Justin F. Keith, Esq.,
(Greenburg Traurig, LLP)
Boston Massachusetts, and
Ian H. Hlawati, Esq.,
White Plains, New York,
for the Respondent.
Alan J. McDonald, Esq., Kristen Barnes, Esq.,
(McDonald Lamond Canzoneri)
Southborough, Massachusetts, and
Robert B. Kapitan, Esq.,
Wareham, Massachusetts,
for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. On May 12, 2017, I issued a decision in
which I found, inter alia, that the General Counsel had established that some of the work rules
challenged in this case violated Section 8(a)(1) of the National Labor Relations Act (Act or
NLRA), but had failed to establish that other challenged work rules violated the Act. Entergy
Nuclear Operations, Inc., (the Respondent) and the General Counsel both filed exceptions to
my decision. While those exceptions were pending before the National Labor Relations Board
(Board or NLRB), the Board issued its decision in The Boeing Company, 365 NLRB No. 154
(2017), reconsideration denied 366 NLRB No. 128 (2018). In that decision, the Board
modified the standards for determining whether an employer’s work rules interfere with
employees’ rights under the Act in violation of Section 8(a)(1). On January 15, 2019, the Board
issued an Order severing and remanding to me the allegations regarding the Respondent’s
work rules. The Order stated that those allegations were being remanded “for the purpose of
reopening the record, if necessary, and preparing a supplemental decision addressing the
complaint allegations affected by” the decision in The Boeing Company. The work rule
allegations that are before me on remand are those set forth in the Second Amended
JD–48–19
2
Consolidated Complaint (Complaint) at paragraph 8(d), paragraph 11 (Sections 3.1 and 5.2),
paragraph 12 and paragraph 13.1 Although in my original decision I found that several of the
Respondent’s challenged work rules were not shown to be unlawful, the rules that remain at
issue on remand are all among those that I previously found unlawful.
5
I offered the parties the opportunity to participate in a supplemental hearing for the
purpose of presenting any additional evidence they believed was relevant to consideration of
the work rules under the standards announced in Boeing Company. The General Counsel, the
Respondent, and the Charging Party all stated that the presentation of additional evidence was
not necessary. I did not find a basis on the record to reject the parties’ consensus that the 10
presentation of additional evidence was not necessary. The General Counsel and the
Respondent have submitted supplemental briefs addressing the impact of The Boeing Company
decision on the remanded allegations. On the entire record, including my observation of the
demeanor of the witnesses, and after considering the briefs filed by the General Counsel and
the Respondent, I make the following findings of fact and conclusions of law.15
FACTS
The Respondent operates a nuclear power plant, referred to as the Pilgrim Nuclear
Power Station, in Plymouth, Massachusetts (the Plymouth facility). Since 2007, the Union has 20
represented the nuclear security officers employed by the Respondent at the Plymouth facility.
The security force is a paramilitary organization and has a presence at the facility 24 hours a
day. The policies before me on remand are set forth in the Respondent’s “Code of Entegrity”
and in separate policy statements regarding protection of information, issue resolution, and
government investigations.25
A. PROVISIONS REFERENCING CONFIDENTIALITY
Since at least July 22, 2015, the Respondent has maintained a policy on “Protection of
Information” (Information Policy). Section 3.1. of the Information Policy defines “employee30
information” as “confidential information” that “must be protected from disclosure”2 and Section 5.2

1 A number of allegations that appear in the Consolidated Complaint (the Complaint) are not before
me. On November 6, 2018, in proceedings before the Board, the General Counsel withdrew the
allegations set forth in Complaint paragraphs 8(a), 9, 15(b), and 17. Subsequently, on April 3, 2019, I
granted the General Counsel’s unopposed motion to withdraw Complaint paragraphs 8(b),8(c), 8(e), 10,
and sections 3.7, 3.14, 5.1, 5.6, and 5.7 of Complaint paragraph 11. The Board, in its remand order,
expressly retained jurisdiction regarding “the allegation that the Respondent unlawfully disciplined
employee Jamie Amaral,” and on May 21, 2019, the Board affirmed my determination that the
Respondent had not been shown to have unlawfully disciplined Amaral. 367 NLRB No. 135 (2019).
2 Section 3.1 of the Information Policy states in its entirety:
3.1 Confidential Information – Those Information Assets that must be protected
from disclosure, either accidental or intentional, due to their sensitive or
proprietary nature. Confidential Information includes but is not limited to:
Sensitive Information; Personal Information; customer information; passwords;
vendor pricing information; information submitted by vendors with their bids;
employee information; information provided in connection with employment
applications (unless a waiver is secured from such applicant for specific
disclosures); information provided by outside parties under a confidentiality
agreement or under circumstances that indicate its confidential nature; marketing
strategies and business plans; non-public financial, accounting and budgeting
records; non-public research and development records; knowledge, data, or
know-how of a technical, financial, commercial, creative, or artistic nature in
JD–48–19
3
provides that employees are prohibited from disclosing confidential information, either accidentally or
intentionally, to “parties both inside and outside the Company, who do not have a legitimate business
‘need to know’ for purpose of the Company’s operations or management.”3 The General Counsel
alleges that these sections unlawfully restrict employees’ exercise of their NLRA rights.
5
The Information Policy contains another provision, Section 5.6, which is devoted to the
protection of employee records. The General Counsel does not allege that the confidentiality
restrictions on employee records that are set forth in Section 5.6 are unlawful. The Respondent
nevertheless cites Section 5.6 for its inclusion of “savings clause” language that the Respondent
contends bears on the legality of the restrictions on employee information that it imposes in10
Section 3.1 and Section 5.2 of the policy. The savings clause that the Respondent points to
states:
5.6 Employee Records . . .
15
* * *
5.6.3 Nothing in this Policy is intended to restrict an employee’s rights
under any federal state or local labor or employment law, or regulation,
except to the extent such rights are clearly waived by the express terms 20
of a current collective bargaining agreement. These employee rights
include, but are not limited to, the right to engage in protected concerted
activity for mutual aid and protection, and the right to engage in protected
concerted activity relating to wages, hours and other terms of
employment, such as the right to discuss his or her wages, benefits and 25
employment conditions with others.
I note, that the Information Policy does not use the terms “employee information” and “employee
records” interchangeably. For example, the policy classifies “employee information” as

which the Company has an ownership interest by virtue of its participation,
acquisition, development, or license rights; and information that, if not properly
safeguarded, might impair the security or privacy of Facilities and personnel,
such as information relating to nuclear plant "protected areas," and "critical
infrastructure information" as defined by the Federal Energy Regulatory
Commission.
3 Section 5.2 of the Information Policy states in its entirety:
5.2 Protection of Confidential Information. In addition to the rules above for
Information Assets in general, employees, agents, and contractors shall:
5.2.1 protect Confidential Information from disclosure, either
accidental or intentional, to all parties, both inside and outside of the
Company, who do not have a legitimate business "need to know" for the
purposes of the Company's operations or management;
5.2.2 comply with any Confidentiality or Nondisclosure Agreement that
applies to such Confidential Information;
5.2.3 take care in the access to, and storage, reproduction,
control, transmission, and destruction of materials containing
Confidential Information;
5.2.4 ensure the timely termination of access to Confidential Information
by individuals who are no longer employed by Entergy or by its agents or
contractors, or who otherwise no longer have a "need to know" such
information to perform their job; and ·
5.2.5 not use file-sharing services that have not been approved through
the GUARD process for sharing Confidential Information.
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4
“confidential,” (Section 3.1) but classifies “employee records” as “sensitive” (Section 3.14), a
subset of confidential.4
The General Counsel also challenges the confidentiality restriction that the Respondent
sets forth in a separate policy on “Issue Resolution.” The Issue Resolution Policy describes a 5
process by which issues between non-unit employees and the Respondent may be investigated and
resolved. Section 5.13 of that policy sets forth the following confidentiality provision that restricts
the use of information collected during that process:
5.13 Confidentiality - All communications and documents generated during this 10
process will be treated as confidential. Disclosure, circulation, distribution, or
discussion of the information collected by the Panel should be limited to those
individuals who have a legitimate business need to know the contents. Release
of any of this information beyond this limited circulation must be approved by the
Senior Vice President Human Resources/Chief Diversity Officer.15
B. PROVISIONS RELATING TO
GOVERNMENT INVESTIGATIONS
The General Counsel alleges that the Respondent has also violated Section 8(a)(1) by 20
maintaining rules that place restrictions on employee participation in government investigations. The
complained of provisions are Code of Entegrity Section 5.I., and Government Investigations Policy
Sections I. (policy summary) and 5.1 through 5.5. These provisions, which are set forth below, create
multiple obstacles to employees’ ability to avail themselves of the assistance of government agencies
and to cooperate with government agencies. For example, the provisions: prohibit employees from 25
answering any questions posed by a government investigator without first contacting the company’s
legal department; prohibit employees from providing any documents requested by a government
investigator without first contacting the company’s legal department; require employees to refer any
government requests for an investigative interview to the company’s legal department; state that “an
employee should contact the legal department before contacting a governmental agency about the30
company’s business”; and warn that an employee who chooses to speak with a government official
without the presence of a company attorney and without company approval “may be liable for any
improper disclosure of any information.” The policy on government investigations makes certain
exceptions for communications with a small number of identified government agencies, including the
Nuclear Regulatory Commission, but makes no exception for communications with the NLRB or which 35
otherwise safeguard employees’ independent access to NLRB processes.
Section 5.I. of the Code of Entegrity, which the Respondent has maintained since at least
December 11, 2014, states:
40
Section 5. I. GOVERNMENT INVESTIGATIONS AND INTERACTIONS
All government requests for inspections, investigative interviews or
documents should be referred to the Legal department for review and
further instruction. Additionally, except to the extent that interaction with
governmental agencies is part of an employee’s job function, the 45
employee should contact the Legal department before contacting a
governmental agency about the company’s business.

4 Section 3.1 of the Policy states that “Confidential Information includes but is not limited to: Sensitive
Information . . . .” Section 3.14 defines “sensitive information” as information that is “highly confidential.”
JD–48–19
5
The Respondent’s Government Investigations Policy has, since at least October 1, 2015,
included the following provisions:
I. POLICY SUMMARY
 Employees, agents and contractors approached by someone claiming 5
to be a government investigator should contact a lawyer in the
Company's Legal Department before answering any questions,
providing any documents, or allowing access to Company facilities.
* * *10
5.1 General. The Company is committed to cooperating with government
agencies conducting investigations of alleged wrongdoing at the
Company. When doing so, two goals are of prime importance:
Government investigators must obtain a complete and accurate picture of 15
the Company, and the Company must protect its legal rights. These two
goals can best be reached by properly coordinating response to
government investigations.
5.2 Legal Department Review. It is the Company's policy that all 20
Subpoenas, Search Warrants, Civil Investigative Demands, written
complaints, and requests for investigative interviews or documents be
referred to the Company's Legal Department for review.
5.3 Government Investigator Activity. Government investigators may 25
arrive unannounced at Company facilities or at the residence of present
or former employees, agents or contractors and seek interviews and
documents. Such persons when approached by someone claiming to be
a government investigator shall, if possible, contact a lawyer in the
Company's Legal Department before answering any questions, providing 30
any documents, or allowing access to Company facilities. The Company's
lawyers can instruct more fully on duties. Employees, agents and
contractors shall not answer any questions, produce any documents, or
allow access before making necessary contacts with Legal. However, if
government investigators possess a search warrant and will not allow 35
time to make such contact before executing the search warrant,
employees, agents and contractors shall not prevent the investigators
from proceeding but shall monitor their activities and contact Legal for
additional direction.
40
5.4 Government Requests for Documents. Employees, agents and
contractors may be asked by government investigators to provide
documentation related to a government inquiry or investigation. Even if an
employee, agent or contractor created, keeps, or updates documentation,
it is nonetheless the Company's property. Employees, agents and 45
contractors do not have the authority to produce documentation for the
investigator without undertaking and following the steps below before
disclosing any documentation to the government agency. If a Search
Warrant is presented for the documentation, follow the additional
guidelines below in Section 5.7.50
JD–48–19
6
(a) Contact the Company's Legal Department and
immediately notify them of the government agency's
request for documentation.
(b) Contact the appropriate Entergy supervisor to notify
him or her of the government agency's request for 5
documentation.
(c) Cooperate with the government investigator, but do not
consent to provide any documentation.
(d) Ask if a Civil Investigative Demand, Subpoena or
Search Warrant accompanies the request for 10
documentation and, if so, request a copy of the Civil
Investigative Demand, Subpoena or Search Warrant.
(e) Wait for an attorney from the Company's Legal
Department to provide instruction on how to move forward
with the request for documentation.15
5.5 Government Request for an Interview. When government officials
request an interview with an employee, agent or contractor, whether or
not on the Company's premises, the employee, agent or contractor shall
notify the Company's Legal Department of the request for an interview 20
and provide the name, agency affiliation, business telephone number and
address of the government official, and the reason for the interview, if
known.
(a) The employee, agent or contractor shall ask if a Civil 25
Investigative Demand, Subpoena or Search Warrant
accompanies the request for an interview and, if so,
request a copy of the Civil Investigative Demand,
Subpoena or Search Warrant. If there is no Civil
Investigative Demand, Subpoena or Search Warrant, the 30
employee, agent or contractor may refuse to discuss any
issues with the government official.
(b) Further, employees, agents and contractors have the
option of speaking with the government official with or
without the presence of an attorney and may decide to 35
forgo any discussions with the government official until
securing legal counsel. If employees desire to have an
attorney present at any meeting with the government
official, employees may request to consult with a private
attorney or with an attorney from the Company's Legal 40
Department prior to the interview.
(c) If an employee, agent or contractor decides to speak
with a government official without an attorney from the
Company's Legal Department present or without the
Company's permission to speak on the Company's behalf,45
the employee, agent or contractor may be liable for any
improper disclosure of any information provided to the
government official regardless of whether the information
harms the Company or whether or not private legal
counsel has been obtained.50
(d) Should an employee, agent or contractor participate in
an interview, it is important that the interviewee understand
JD–48–19
7
what the interview is about. The interviewee should always
obtain clear and proper identification from a government
agent before beginning an interview and make sure that he
or she understands the purpose of the interview, the
purpose of the investigation, and his or her status in the 5
investigation. The Company's Legal Department can help
the interviewee understand what the interview and
investigation are about and what the Company's rights and
obligations are in such a situation. Further, the
interviewee's answers matter greatly in any investigation. 10
Any answers given must first of all be true and in addition
must accurately represent the interviewee and the
Company to the investigator. The interviewee should
remember to give clear and unambiguous answers, asking
himself or herself whether the investigator could read 15
something unintended into the answer. If so, the answer
should be given in a different way or clarification of
statements already made should be made. Speculation
should be avoided as speculative answers are easily
misunderstood and can be inaccurate.20
ANALYSIS
In The Boeing Company, the Board announced standards for determining whether an
employer’s facially neutral rule interferes with employees’ NLRA rights in violation of Section 8(a)(1) of 25
the Act. 365 NLRB No. 154. The Board stated that unless the rule is of a type that the Board has
already designated as being uniformly lawful or unlawful, the lawfulness of the rule, under Section
8(a)(1), will be evaluated using a balancing test. First, the Board will determine whether the rule is one
that the employees would “reasonably interpret[ ]” as “potentially interfer[ing] with the exercise of
NLRA rights.” If it is, the Board will evaluate whether the “nature and extent of the potential impact on 30
NLRA rights” outweighs any “legitimate justifications associated with” the rule. Slip op. at 3-4 and 16.
The Respondent’s rules regarding confidential information and regarding employee participation in
government investigations are facially neutral and are not among those types that the Board has, as of
this time, designated as uniformly lawful or unlawful. Therefore, the balancing test set forth in Boeing
is the applicable analysis. 35
1. The General Counsel challenges the “confidentiality” restrictions set forth in the
Respondent’s Information Policy at Section 3.1 and 5.2, and in the Respondent’s Issue Resolution
Policy at Section 5.13. The General Counsel states that employees would reasonably interpret these
provisions as interfering with their NLRA rights to, inter alia, discuss their wages and benefits. Turning 40
first to the Information policy, there is no doubt that the General Counsel is correct that the provisions
identified would be reasonably understood by employees to prohibit them from discussing their wages
and other benefits of employment with one another and with their union or other outside entity. The
Information Policy defines all “employee information” as “confidential” and states that employees are
prohibited from disclosing such information to persons inside or outside of the Respondent unless 45
those persons “have a legitimate business ‘need to know’ for the purposes of the [Respondent’s]
operations or management.” This restriction interferes with employees’ NLRA right to discuss properly
obtained employee information such as wages, terms and conditions of employment, and contact
information with, inter alia, co-workers and a union. See Rio All-Suites Hotel and Casino, 362
NLRB 1690, 1691(2015), Flex-Frac Logistics, LLC, 358 NLRB 1131, 1131 (2012), enfd. 746 50
JD–48–19
8
F.3d 205 (5th Cir. 2014), IRIS U.S.A., Inc., 336 NLRB 1013, 1013 (2001).5 The interference goes
to the heart of employees’ NLRA rights to seek to improve their working conditions and imposes a
heavy burden on the exercise of those rights. Pursuant to the NLRA, “information [that] involves
matters concerning the wages, hours, and working conditions of . . . employees . . . is precisely
the type that may be shared by employees, provided to unions, or given to governmental 5
agencies.” Hyundai America Shipping Agency, Inc., 357 NLRB 860, 871 (2011), reversed on
other grounds 805 F.3d 309 (D.C. Cir. 2015).
The Respondent does not take the opportunity created by the balancing test announced in
Boeing to attempt to show that “legitimate justifications” for the confidentiality rules outweigh the 10
burdens those rules place on employees’ NLRA rights. In its brief, the Respondent does not point to
any “legitimate justifications” that it claims outweigh the negative impact that the confidentiality
restrictions have on employees’ ability to exercise their NLRA rights. I find that the evidence of record
does not establish the existence of any legitimate justification that outweighs the heavy burden the
Respondent has imposed on employees’ exercise of their NLRA rights. 15
Rather than attempt to show that its confidentiality restrictions have a legitimate justification,
the Respondent argues that the “savings clause” language that appears in a section of the policy
that addresses “employee records” means that employees would not reasonably understand the
challenged restrictions on the broader category of “employee information” to potentially interfere 20
with their exercise of NLRA rights. This is an argument that I rejected prior to the remand and it
is in no way improved by consideration of Boeing, which does not address the established
Board law applicable to savings clause language. That Board law, which is discussed below,
requires rejection of the Respondent’s savings clause defense.
25
A savings clause “may, in certain circumstances, clarify the scope of an otherwise
ambiguous and unlawful rule.” First Transit, Inc., 360 NLRB 619, 621 (2014). To determine
whether a savings clause remedies a provision’s otherwise unlawful interference with NLRA
rights, the Board has considered the following factors: whether the language “address[es] the
broad panoply of rights” protected by Section 7 of the NLRA; the length of the document and the 30
placement of the savings clause in relation to the ambiguous rules that it is claimed to remedy;
whether the savings clause and the ambiguous rules reference each other; and, whether the
employer has enforced the overbroad rule in a way that shows employees that the savings
clause does not safeguard their NLRA rights. Id. at 621-622; see also Care One at Madison
Avenue, 361 NLRB 1462, 1465 n.8 (2014), enfd. 832 F.3d 351 (D.C. Cir. 2016). In deciding 35
whether a savings clause has succeeded in rendering an employer’s otherwise impermissible

5 The Board has repeatedly held that employees have a protected right to discuss information
about co-workers when they obtain that information in the normal course of work activity, and not
by removing confidential business records from an employer’s files. See Rocky Mountain Eye
Center, 363 NLRB No. 34, slip op. at 9-10 2015) (employee engaged in protected activity by
providing union organizer with employee names and phone numbers obtained by accessing the
employer’s computer system), Albertson's, Inc., 351 NLRB 254, 259 (2007) (employee engaged in
protected activity by disclosing list of employees' names to the union), Gray Flooring, 212 NLRB 668,
669 (1974) (employee engaged in protected activity by providing union organizer with co-worker
names and telephone numbers that were obtained from a list hanging in a supervisor’s office and
from index cards obtained from a supervisor’s desk), Ridgely Mfg. Co., 207 NLRB 193, 196-197
(1973), enfd. 510 F.2d 185 (D.C. Cir. 1975) (employee engaged in protected activity by providing
union organizer with names of employees from timecards); Anserphone of Michigan, 184 NLRB 305,
306 (1970) (employee engaged in protected activity by providing union organizer with names and
addresses of employees obtained from office manager); cf. International Business Machines Corp., 265
NLRB 638, 638 (1982) (employee did not engage in protected activity by distributing employee wage
information obtained from a confidential employer document).
JD–48–19
9
prohibition lawful, the Board construes any ambiguity against the employer as the drafter of both
the prohibition and the savings clause. Century Fast Foods, Inc., 363 NLRB No. 97, slip op. at
11 (2016).
As noted above, the savings clause appears in a section entitled “employee records” 5
and states that the policy is not meant to interfere with employee rights that “include, but are not
limited to, the right to engage in protected concerted activity for mutual aid and protection, and
the right to engage in protected concerted activity relating to wages, hours and other terms of
employment, such as the right to discuss his or her wages, benefits and employment conditions
with others.” Three of the four considerations that the Board discussed in First Transit weigh 10
against finding that this savings clause cures the otherwise unlawful confidentiality restrictions in
Sections 3.1 and 5.2. First, the language the Respondent relies on does not address the “broad
panoply” of NLRA rights because it makes no mention of employees’ rights to engage in union
activity. Second, the sections that contain the challenged confidentiality prohibitions do not
reference the savings clause or the section that contains it, and the savings clause does not 15
reference the at-issue sections of the confidentiality policy. Moreover, I note that the savings
clause does not appear in one of the Information Policy’s introductory or conclusory sections,
where an employee might arguably understand it as applying to the entire Policy. Rather the
language the Respondent relies on appears in a subparagraph of a provision that narrowly
addresses employee “records,” not employee information or confidential information generally. 20
Third, the language the Respondent relies on is not situated in proximity to the at-issue
prohibitions. Within the 15-page policy, the savings clause appears in a subsection 7 pages
distant from Section 3.1 (the provision that provides that “employee information” “must be
protected from disclosure”).
25
The record does not show how, if at all, the Respondent has enforced the confidentiality
provisions, and therefore does not show whether the Respondent has, or has not, enforced
those provisions in a way that would lead employees to believe that the savings clause does not
safeguard their NLRA rights. Given that the Board construes any ambiguity regarding the
savings clause against the Respondent, Century Fast Foods, supra, this absence of evidence 30
does not, in my view, weigh in favor of finding that the savings clause alleviates the interference
with Section 7 activity. Even assuming that the lack of evidence regarding enforcement weighs
in the Respondent’s favor, it does so only lightly and is outweighed by the other three
considerations, all of which heavily favor finding that employees would reasonably read the
policy as interfering with their NLRA rights.35
I also find that employees would reasonably interpret the Respondent’s Issue Resolution
Policy to interfere with the exercise of NLRA rights and that this interference was not shown to be
outweighed by any legitimate justifications associated with the rule. The Respondent’s Issue
Resolution Policy sets forth a process by which problems between non-unit employees and the 40
Respondent may be investigated and resolved. The General Counsel challenges the confidentiality
provision in that policy, Section 5.13, which states that “all communications and documents generated
during this process will be treated as confidential.” This provision further limits the “[d]isclosure,
circulation, distribution, or discussion of the information collected by the” decision-making panel unless
management’s approval is obtained. The Board has recognized that employee discussions regarding 45
employer investigations involving themselves or coworkers are “vital to employees’ ability to aid one
another in addressing employment terms and conditions with their employer.” Banner Estrella Medical
Center, 362 NLRB 1108, 1109 (2015), enfd. 851 F.3d 35 (D.C. Cir. 2017), citing Fresh & Easy
Neighborhood Market, 361 NLRB No. 12, slip op. at 5-6 (2014); see also SNE Enterprises, 347 NLRB
472, 472 fn.4 (2006), enfd. 257 Fed. Appx. 642 (4th Cir. 2007). The Board stated that the Act not only 50
makes it unlawful for an employer to prohibit such discussions, but also makes it unlawful for an
employer to maintain a rule that, like part of the Respondent’s rule here, “’requires employees to
JD–48–19
10
secure permission from their employer as a precondition to engaging in protected concerted
activity.’” Victory Casino Cruises, 363 NLRB No. 167, slip op. at 4 (2016), quoting Brunswick Corp.,
282 NLRB 794, 795 (1987); see also UPMC, 362 NLRB 1704, 1728 (2015), Alternative Community
Living, Inc., 362 NLRB 435, 451 (2015).
5
Employees would reasonably understand the Respondent’s blanket confidentiality rule
regarding information gathered an issue resolution investigation to interfere with the exercise of their
rights both to discuss employer investigations involving themselves or coworkers with co-workers and
outside entities, and to share information generated by the decision-making panel’s investigation. The
Respondent argues that employees would not reasonably understand the restriction to apply to them 10
because “[t]here are no words in the policy that limit the ability of the employee to discuss his/her
discipline.” This is not persuasive. The prohibition is expressed generally and does not enumerate
specific groups of individuals to whom the restrictions apply. There is nothing in the restriction
indicating that it only limits the prerogatives of managers, supervisors, or any groups of individuals who
do not have rights under Section 7 of the NLRA.15
At the time I issued my original decision, I applied existing Board precedent under which a
balancing test was used to evaluate the lawfulness of employer confidentiality rules relating to
employer investigations. See, e.g., Midwest Division—MMC, LLC, 362 NLRB 1746, 1748-49
(2015), enfd. 867 F.3d 1288 (D.C. Cir. 2017). Under that test, I evaluated the confidentiality rule 20
by balancing the burden that the restriction placed on NLRA rights against the Respondent’s
need for the restriction. The balancing test formulation set forth in the Boeing decision, while it
modified the analysis for many types of workplace rules, does not appear to have meaningfully
altered the balancing test that already applied to the confidentiality restrictions in the
Respondent’s Issue Resolution Policy, and does not alter my conclusion that those restrictions25
unlawfully interfere with employees’ NLRA rights. Under either articulation of the balancing test,
I adhere to the Board precedent holding that an employer may prohibit employee discussion of an
investigation only when the employer’s need for confidentiality with respect to that specific
investigation outweighs employees’ NLRA rights. This permits an employer to lawfully impose such a
restriction only on a case-by-case basis and by considering whether the circumstances of the 30
particular investigation create legitimate concerns of witness intimidation or harassment, the
destruction of evidence, or other misconduct tending to compromise the integrity of the inquiry. See
Banner Estrella, 362 NLRB at 1109-1110. A “blanket” confidentiality provision, such as the one the
Respondent imposed here, clearly fails to satisfy the requirement that the employer consider the
particulars of each investigation and thus the provision unlawfully interferes with employees’ NLRA35
rights. See, e.g., Hyundai America Shipping Agency, Inc., 357 NLRB 860 (2011); see also SNE
Enterprises, 347 NLRB at 472 fn.4 and 492-493 (confidentiality rule that applied after the
investigation was completed cannot be justified as necessary “to protect the sanctity of an
ongoing investigation”).
40
Even if, under Boeing, a blanket prohibition on the sharing of information from investigations
could be rendered lawful by a sufficiently weighty justification, the result would be the same because
the record does not establish any such justification. There was no evidence that the Respondent has
experienced recurring problems with witnesses being harassed or intimidated, evidence being
destroyed, false testimony or other false evidence being created, or with anyone otherwise exploiting 45
information from investigations to interfere with those investigations. The record does not show that
the blanket prohibition in its Issue Resolution Policy is necessitated by requirements imposed on the
Respondent by the Nuclear Regulatory Commission. Indeed, in its brief on remand, the Respondent
does not even make an argument that legitimate justifications for the confidentiality restrictions in its
Issue Resolution Policy outweigh the burdens that those restriction impose on employees’ exercise of 50
their NLRA rights.
JD–48–19
11
Since at least July 22, 2015, the Respondent has violated Section 8(a)(1) of the Act by
maintaining Section 3.1 and Section 5.2 of its Information Protection Policy, which contain overly
broad prohibitions on the disclosure of “employee information” and interfere with employees’ exercise
of their rights under the Act. Since at least October 1, 2015, the Respondent has violated Section
8(a)(1) of the NLRA by maintaining Section 5.13 of its Issue Resolution Policy, which sets forth 5
an overbroad confidentiality restriction on information gathered in the issue resolution process
and interferes with employees’ exercise of their rights under the Act.
2. The General Counsel also alleges that the Respondent has violated Section 8(a)(1)
of the Act by maintaining rules that restrict employees from communicating or cooperating with 10
government agencies investigating the Respondent. The challenged restrictions, which are set
forth above in the statement of facts, appear in the Respondent’s Code of Entegrity at Section 5.I.
and in the Government Investigations Policy in the “policy summary” section and Section 5.1 to 5.5.
The explicit language of these provisions requires employees to notify the Respondent’s Legal
Department whenever they are contacted by an agent of a government agency and to get the 15
Respondent’s permission before cooperating with, or providing evidence to, a government agency.
The United States Supreme Court has recognized that guaranteeing the public coercion-free,
independent, access to the Board’s processes is key to “the functioning of the [National Labor
Relations] Act as an organic whole.” NLRB v. Marine & Shipbuilding Workers Local 22, 391 U.S.
418, 424 (1968); see also Nash v. Florida Industrial Commission, 389 U.S. 235, 238 (1967). 20
Employees would reasonably understand the challenged restrictions regarding government
investigations to prohibit them from initiating contact with the NLRB, responding to the inquiries
of NLRB investigators, providing information to the NLRB, or responding to NLRB subpoenas
unless the Respondent’s Legal Department is informed about, and authorizes, this employee
activity. Such restrictions interfere with, and would reasonably be understood by employees to 25
interfere with, employees’ right to have “coercion-free, independent, access to the Board’s
processes.”6
In its brief on remand, the Respondent does not set forth any legitimate justification that,
under the Boeing balancing analysis would, outweigh this burden on employees’ NLRA rights 30
and on the Board’s processes. At any rate, I find that the record evidence does not establish
the existence of any such justification for the challenged restrictions in the Government
Investigations Policy. Instead of arguing that some legitimate justification outweighs the
interference with NLRA rights, the Respondent contends that because most of its employees
are unionized “no reasonable employee would understand this policy as restricting access to the 35
NLRB or its processes.” That argument does not hold water. The Respondent cannot escape a
finding of violation by arguing that no reasonable employee would believe the Respondent
would be so brazen as to maintain a policy that does exactly what its policy says it is doing
– i.e., interfering with employees’ ability to avail themselves of, or cooperate with, government
agencies such as the NLRB. 40
The Respondent has violated Section 8(a)(1) of the Act: since at least December 11,
2014, by maintaining Section 5.I. in its Code of Entegrity; and since at least October 1, 2015, by
maintaining Sections I. (policy summary) and 5.1 to 5.5 of its Government Investigations Policy.
45

6 The administrative law judge reached the same conclusion in DISH Network Corp., 359 NLRB No.
108, slip op. at 1 fn.1 and 6 (2013), however, that finding was not challenged before, or ruled on by, the
Board in that case.
JD–48–19
12
CONCLUSIONS OF LAW REGARDING REMANDED ALLEGATIONS
1. Since at least July 22, 2015, the Respondent has violated Section 8(a)(1) of the Act by
maintaining Section 3.1 and Section 5.2 of its Information Protection Policy.
2. Since at least October 1, 2015, the Respondent has violated Section 8(a)(1) of the Act5
by maintaining Section 5.13 of its issue resolution policy.
3. The Respondent has violated Section 8(a)(1) of the Act since at least December 11,
2014, by maintaining Section 5.I. in its Code of Entegrity, and since at least October 1, 2015, by
maintaining Sections I. (policy summary) and 5.1 to 5.5 of the policy on government
investigations. 10
REMEDY
Having found that the Respondent maintains overbroad restrictions that unlawfully
interfere with employees’ Section 7 activity, I will require the Respondent to rescind the unlawful 15
restrictions.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order. 7
ORDER20
The Respondent, Entergy Nuclear Operations, Inc., Plymouth, Massachusetts, its
officers, agents, successors, and assigns, shall
1. Cease and desist from25
(a) Maintaining or promulgating any over broad rules that unlawfully interfere with
employees exercising their rights, guaranteed by Section 7 of the NLRA, to engage in protected
union and/or protected concerted activity.
30
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the NLRA.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
35
(a) Within 14 days from the date of this Order, rescind the following provisions at the
Respondent’s Plymouth facility: Section 3.1 and Section 5.2 of its Information Protection Policy;
Section 5.13 of its Issue Resolution Policy; section 5.I. of its Code of Entegrity and Sections I.
(policy summary) and 5.1 to 5.5 of the Policy on Government Investigations.
40
(b) Within 14 days from the date of this Order notify all employees at the Respondent’s
Plymouth, Massachusetts, facility that the employer provisions referenced in the preceding
paragraph are rescinded, void, of no effect, and will not be enforced.
(c) Within 14 days after service by the Region, post at its facility in Plymouth, 45
Massachusetts, copies of the attached notice marked “Appendix.”8 Copies of the notice, on

7 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 purposes.
8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
JD–48–19
13
forms provided by the Regional Director for Region One, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or 5
other electronic means, if the Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the 10
notice to all current employees and former employees employed by the Respondent at any time
since December 11, 2014.
(d) 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 15
the Respondent has taken to comply.
20
Dated, Washington, D.C. June 4, 2019

25
Paul Bogas
Administrative Law Judge

reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–48–19
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT promulgate or maintain any over broad rules that unlawfully interfere with your
rights to engage in protected union and/or protected concerted activity.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the National Labor Relations Act.
WE WILL, within 14 days from the date of this Order, rescind the following provisions
maintained at the Pilgrim Nuclear Power Station in Plymouth, Massachusetts: Section 3.1 and
Section 5.2 of our Information Protection Policy; Section 5.13 of our Issue Resolution Policy;
Section 5.I. in our Code of Entegrity; and Sections I. (policy summary) and 5.1 to 5.5 of our
Policy on Government Investigations.
WE WILL, within 14 days from the date of this Order notify all employees at the Plymouth,
Massachusetts, facility that the employer provisions referenced in the preceding paragraph are
rescinded, void, of no effect, and will not be enforced.
ENTERGY NUCLEAR OPERATIONS, INC.
(Employer)
Dated By
(Representative) (Title)
JD–48–19
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov
10 Causeway Street, 6th Floor, Boston MA 02222-1072
(617) 565-6700, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/01-CA-153956 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER (857) 317-7816.
El Fir.' El