Hennes & Mauritz, LP d/b/a H&M

National Labor Relations Board - Administrative Judge Opinions

Jun 22, 2020

32-CA-250461 (N.L.R.B. Jun. 22, 2020)

JD(SF)–14–20
Hayward, San Francisco and
Emeryville, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
HENNES & MAURITZ, LP D/B/A H&M
and Cases 32–CA–250461
32–CA–256051
UNITED FOR RESPECT
Jason P. Wong, Esq., for the General Counsel.
Michael G. Pedhirney, Esq. (Littler Mendelson P.C.)
for the Respondent Employer.
DECISION
Statement of the Case
ARIEL L. SOTOLONGO, Administrative Law Judge. At issue in this case is whether
Respondent Hennes & Mauritz LP, d/b/a H&M (Respondent or H&M) unlawfully discharged its
employee Nickolas Gallant (Gallant) because he engaged in protected concerted activity, and
whether on various dates from May through August, 2019, Respondent engaged in unlawful
coercive conduct towards its employee(s), including interrogations, threats, creating the
impression of surveillance, and other similar conduct.1
I. Procedural Background
Based on charge, and amended charge, filed by United For Respect (UFR) in case 32–
CA–250461 on October 21, 2019 and December 19, 2019, respectively, the Regional Director
for Region 32 of the Board issued a complaint based on those charges on December 20, 2019.2
Thereafter, after the filing of a charge in case 32–CA–256051 by UFR on February 10, 2020, the
Regional Director issued an consolidated complaint on February 25, 2020, alleging that
1 In its complaint, the General Counsel had additionally alleged that Respondent had maintained certain rules in its
employee handbook which were unlawful. By letter dated April 30, 2020, the General Counsel withdrew said
allegations, which were contained in paragraph 6 of the complaint. I note that this does not affect paragraph 8 of the
complaint, which alleges that Respondent unlawfully applied its work rules to restrict Section 7 activity.
2 Although little testimony was proffered on the nature of UFR, it appears that it is a community-based organization
that promotes employee interests, such as wage, hour and health and safety laws and regulations, as will be briefly
discussed above in relation to the activities of alleged discriminatee Gallant. I note that UFR is not alleged in the
complaint to be a labor organization within the meaning of Section 2(5) of the Act—nor is there a need to, as any
party can file Board charges.
JD(SF)–14–20
2
Respondent had violated Section 8(a)(1) of the Act by engaging in the conduct briefly described
above. Respondent thereafter filed a timely answer to said complaint, in essence denying that it
had acted unlawfully. I presided over a hearing in this case on March 9, 2020 in Oakland,
California.
5
II. Jurisdiction
The complaint alleges, and Respondent admits, that at all material times Respondent has
been a corporation with places of business in Hayward, San Francisco, and Emeryville,
California, where it is engaged in the retail sale of clothing and related products. The complaint 10
further alleges, and Respondent admits, that in conducting its business operations described
above, it has derived gross revenues in excess of $500,000, and has purchased and received at its
California stores goods valued in excess of $5,000 directly from points outside California.
Accordingly, the complaint alleges, Respondent admits, and I find, that it has been an employer
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.15
III. Findings of Fact
A. Background Facts
20
The facts discussed in this section are not in dispute, and indeed some are contained in
exhibits that were introduced jointly by the parties. As briefly noted above, Respondent H&M is
engaged in the retail clothing industry and operates numerous retail stores throughout the country
and the world, including stores in San Francisco, Emeryville and Hayward, where events at issue
herein occurred. Gallant worked as a sales advisor at various stores since 2016, the last one in 25
Emeryville (store #145), where he was employed at the time he was discharged on August 27,
2019.3 Nina Walters (Walters) was Respondent’s District HR Manager until September 2019,
and Elena Siantz (Siantz) was Respondent’s Employee Relations Specialist (beginning in July
2019). Both were admitted by Respondent to be Section 2(13) agents of Respondent at the time
of the events in question herein. Thomas Baugh (Baugh) was store manager at the Emeryville 30
store where Gallant worked, and Hailey Hunter (Hunter) was a Department Manager at that
store. Both were admitted being Section 2(11) supervisors and Section 2(13) agents of
Respondent at the time of the events related to Gallant.4
It is undisputed that Respondent maintained and enforced certain rules with regards to its 35
employees, contained in its “Support Book” under the headings of “Conflict of Interest” (COI)
and “Non-Disclosure/Confidential Information” (NDCI), which were as follows:
3 All dates hereafter shall be in calendar year 2019, unless otherwise specified.
4 Additional individuals who were identified as managerial employees of Respondent in the record, and who
directly or indirectly had a role in the events related to Gallant were: Chris Mikulski, Country Employee Relations
Manager; Pamela Blanco, Labor Relations Supervisor; James Reed, Manager at store #101 (San Francisco Westfield
Mall); and Andrew Mutchler, West Coast Regional HR Manager. While none of these individuals were alleged as
Section 2(11) supervisors or Section 2(13) agents of Respondent in the complaint, there can be little doubt, given
their positions, that they were either or both.
JD(SF)–14–20
3
Conflict of Interest
All employees must avoid professional activities and relationships that conflict with
H&M's interests or negatively affect H&M's reputation. The activities and relationships
include, but not limited to:
5
& Accepting, receiving or soliciting gifts, favors or services that may or appear to
influence the employee's decisions or professional conduct.
& Accepting, agreeing to accept or soliciting money or other tangible or
intangible benefits in exchange for the employee's favorable decisions or
actions pertaining to job performance.10
& Accepting employment or participating in a professional activity that may
require disclosing H&M confidential Information.
& Accepting work or conducting outside business with a competitor. State and
local regulations apply.
15
Employees must inform their manager of actual or potential conflicts as soon as they are
aware of them.
Non-Disclosure/Confidential Information
H&M expects all employees to use sound judgment to protect its confidential 20
information. Confidential information can be considered as:
& Personnel files and information
& Shrink & Sales information and financial data
& Methods of loss prevention
& Pricing practices 25
& Any information management
& Advertised and unadvertised information defines as confidential
(J. Exh. 2)
Likewise, as discussed below, it is undisputed that Respondent maintains that Gallant was 30
discharged because he allegedly violated these rules.5 It is also undisputed that during the period
from May through August, Gallant was engaged in protected concerted activity, discussed in
more detail below, which the General Counsel alleges was the basis for Gallant’s discharge.6
For example, on at least two occasions in late May and or early June, Gallant spoke to employees
at the H&M store at the Westfield Mall in San Francisco (store #101), which Gallant visited, 35
about problems employees were having with their working conditions. The conditions that
Gallant discussed with the employees included employees allegedly having to work, for several
hours, while fire alarms were going off, employees not receiving sufficient bathroom breaks
despite their medical condition(s), and bereavement leave. Gallant also explained to them the
“Fair Workweek” policies that were in effect for the city of San Francisco, as well as other 40
5 Thus, there is no dispute that this is what Respondent asserts was its reason to discharge Gallant, although the
General Counsel believes otherwise and has so alleged.
6 In this regard I note that in its post-hearing brief, Respondent concedes that Gallant had been engaged in protected
concerted activity, although it disputes that this was the basis for his discharge. (See, Respondent’s post-hearing
brief, p. 38)
JD(SF)–14–20
4
nearby localities.7 Gallant testified that he was observed during his visits by managers at the
store while he spoke to the employees, who were on break. Gallant engaged in additional
protected concerted activity subsequently, prior to his discharge, as discussed below. Finally,
there is no dispute that Respondent discharged Gallant on August 27, although the General
Counsel and Respondent differ on the reason or motivation for his discharge.85
B. The Events at the Hayward Store
There is no dispute that in late May or early June, Gallant was asked by Respondent to
attend and participate in an “assessment center,” where employees are assessed for potential 10
supervisory or managerial positions, at its store at the Southland Mall in Hayward, California. In
addition to Gallant and several other employees, also in attendance at the assessment center on
this occasion was Nina Walters (Walters), Respondent’s District HR Manager at the time.
Gallant testified that after the training session ended, as they were leaving the breakroom where
the training was conducted, Walters approached him and said, “we need to talk,” and led him 15
into a vacant manager’s office. Upon arriving at the office, Walters said to Gallant “you have
been visiting our San Francisco store(s),” at which time Gallant admitted that he had. He
explained that he had been there to look at the fire alarm situation as well as a situation involving
a locked door which (apparently) should be open at all times, for safety reasons. According to
Gallant, Walters asked him why he was doing this, adding that this was her job, not his. She also 20
said to him that he should not be talking to employees about policies he wasn’t aware of or had
any knowledge about. Gallant then told Walters that he had an “internship” and was doing “Fair
Workweek” outreach in San Francisco and was talking to workers about violations and
conducting surveys of customers regarding the doors being locked. According to Gallant, Walter
then asked “Internship? What’s that?” Gallant replied that he was an advocate for “Fair 25
Workweek.” Gallant than told Walters that five employees at the San Francisco store wanted to
quit because of favoritism and that they deserved a “committee.” According to Gallant, when he
used the word “committee,” Walter’s voice and demeanor changed, now becoming “serious.”
She then asked who the five employees (who wanted to quit) were and asked Gallant what type
of question he was asking and asked if he had copies of the “surveys.” Gallant told Walters he 30
had no copies of any surveys, as his questions were all verbal, and that he asked customers how
they felt. He also told her that he had been informed that the air conditioning at store #80 was
broken, and that employees were uncomfortable, and that he had spoken to both employees and
customers about that situation. Walters told Gallant that she would follow up with him regarding
his “internship,” and asked again who the five employees were who wanted to quit.35
As would be expected, Walters’ depiction of this encounter is somewhat different than
Gallant’s, even though she did acknowledge discussing some of the topics mentioned by Gallant.
Perhaps the most salient distinction in her account is that Walters testified that it was Gallant
who called her aside after the training session was over, telling her he wanted to talk to her. She 40
then led Gallant to a vacant office nearby, although she did not know at the time what Gallant
7 “Fair Workweek” ordinances require local employers to abide by certain standards with regard to employees’
hours and work schedules.
8 The complaint alleges that Respondent discharged Gallant on August 17, and in its post-hearing brief (P. 11)
Respondent suggests that this occurred on August 22, but the records introduced into evidence clearly show this
occurred on August 27, as testified to by Gallant (Tr. 76–77; Jt. Exh. 4; R. Exh. 4).
JD(SF)–14–20
5
wanted to talk about.9 According to Walters, once at the office, Gallant said he wanted to
discuss the events at store #101 in San Francisco. Gallant brought up the problem with fire
alarm, telling her he had discussed the situation with his peers at the store. Walters testified that
she asked him how his peers felt, because she wanted to find some kind of resolution to the
problem. At that point, according to Walters, Gallant said that he had an “internship,” also 5
mentioning that he was in law school, adding that he had been “surveying the stores within the
market, to gather information.” Walters did not recall much else about the conversation, but she
specifically denied telling Gallant that it wasn’t within his job description to talk to other
employees. She also denied asking Gallant to provide copies of the surveys he had taken, or
asking him to identify the employees with whom he had spoken about workplace concerns, or to 10
identify the employees who claimed to have been victims of favoritism,10 and further denied that
Gallant had said anything about a work committee.
Regarding Gallant and Walters’ conversation at the Hayward store, as described above,
I credit Gallant’s version as being more credible and reliable, for several reasons. First, from the 15
very start, I believe it far more plausible and likely that it was Walters who asked to speak with
Gallant at the end of the training session, rather than the other way around. The very fact that
Walters led him to an office, where they could speak in private, indicates that she wanted their
conversation to remain between themselves. It makes little sense that Walters would lead
Gallant to the vacant office, before she had any idea of what he was going to say, had Gallant 20
been the one who initiated their encounter. Indeed, Walters admitted that she had been informed
about Gallant’s visits to the San Francisco store, which makes it more likely that she wanted to
find out about the reason for his visit(s), and would therefore have initiated their conversation.11
Second, Gallant’s version of their conversation was far more detailed, whereas Walters admitted
not recalling a number of things about the conversation—and many of the things she did recall 25
dovetailed with Gallant’s version, though she specifically denied having said some of the things
Gallant claimed. Finally, I note that Gallant freely admitted having initiated subsequent contacts
with Walters, as discussed below, which makes his testimony that this instance was initiated by
Walters more credible. Accordingly, I credit Gallant’s version of their conversation and find that
it occurred in the manner he described.30
C. Gallant Revisits the San Francisco Store and Respondent’s Reaction
On June 13, Gallant again visited store #101 in San Francisco, and spoke to employee
Elsa Soronia about the working conditions in the store, including the fire alarm situation, the 35
locked doors situation, and the hiring of new employees despite reduced hours for current
employees. Gallant checked the doors at the kids’ department and verified that they were still
9 Initially, Walters’ testimony suggested that Gallant had told her, up-front, that he wanted to talk to her about
events at store #101 in San Francisco, and then she led him to the vacant managers’ office (Tr. 126). She later
clarified, however, that she wasn’t aware of what Gallant wanted to talk to her about, and that it wasn’t until they
reached the office that Gallant mentioned the events at store #101 in San Francisco (Tr. 153–154)
10 I would note, however, that Walters also testified she did not recall if Gallant had said anything about employees
complaining about favoritism (Tr. 128)
11 I would note that the Emeryville store, where Gallant worked, is near Oakland/Berkeley and across the Bay from
San Francisco, about 10 miles away. Certainly, it is reasonable to infer that management would be curious as to
why an employee from that store would come such a long way to meet with the employees at the San Francisco
store.
JD(SF)–14–20
6
locked. He asked Supervisor Ching Lam to unlock the door(s), but Lam replied that he was too
busy. Gallant then went to complain to the Mall security office about the locked doors, and
security personnel accompanied Gallant back to the store, where they met with Store Manager
James Reed. The security guard informed Reed that they had received a complaint about the
locked doors, which was in possible violation of OSHA regulations, and asked Reed to unlock 5
the door(s). Reed asked Gallant why he was doing this and told him that he was causing a
disturbance and making “us” (H&M) look bad. Gallant replied, “you are putting us in danger.”
Reed unlocked the doors in question. Gallant testified that he then phoned Walters and left a
message in her voice mail detailing what had just occurred. A short while later, Walters called
Gallant back, and told him he had received his message and would take care of these matters . 10
Gallant asked Walters if she could meet with him, but she declined, stating that she was too busy.
Walters confirmed that Gallant had phoned her and confirmed the essence of their
conversation when she called him back. On that same date, Reed sent Walters an email,
complaining to her about Gallant’s visit and actions, including calling Mall management, and 15
describing Gallant’s conduct as “disruptive.” (GC Exh. 9). That same afternoon, Walters
emailed Chris Mikulski, Respondent’s Country (U.S.) Employee Relations Manager, to report on
Gallant’s actions. Her email to Mikulski, which attached Reed’s email to her, states, in relevant
part, as follows:
20
[H]e has an internship with a workers coalition (name he will not disclose) in which Nick
essentially “audits” retailers in San Francisco, including H&M in which he is employed.
Nick has been seen in multiple stores throughout the city in BOH reviewing staff
schedules, legal postings, consistency of policies from store to store/employee to
employee, store safety & even fielding employee relation issues. Whereas this is an 25
AWESOME second set of eyes to have and I appreciate the intent, some of the
managers in these locations are feeling as though he is interrupting business and causing
issues instead of resolving them. He also may not have the training or all the information
available to him as a FTSA to say what the brand is or is not doing in regard to those
issues... (GC Exh. 9)30
Later that afternoon, Mikulski replied via email to Walters, stating: “I was not aware of
this concern. I’ll give you a buzz tomorrow because I have serious concerns with the conflict of
interest this creates” (GC Exh. 10).
35
D. The Meeting on July 18
On July 18, Gallant was called to a meeting at the store in Emeryville where he worked.
Present for the meeting, in person, was Hailey Hunter, a department manager at the store, and
Walters, who connected with them via phone. According to Gallant’s testimony, Walters told 40
him that now that he had informed them of his internship, they needed to get some insight on it,
because they were concerned he might be violating Respondent’s conflict of interest policy.
Gallant replied that he was an advocate for the “Fair Workweek” policy, which he and others
were trying to get implemented statewide. Walters told Gallant that “it” (the internship) might
be violating the conflict of interest policy by disclosing confidential information. According to 45
Gallant, by “confidential information” Walters was referring to such things as sales reports,
JD(SF)–14–20
7
“shrink percentage,” and internal move reports with visuals.12 Walters then questioned Gallant
about the surveys he had taken, wanting to know what they were all about. Gallant told Walters
that he had already explained this before. He mentioned that he had done “surveys” of
employees and customers at store #80, when the air conditioner had broken down, as to how they
felt, and mentioned that he had filed complaints with OSHA. Walters informed Gallant that such 5
actions were outside his role as a sales advisor, that there was a chain of command to be
followed, and stated that employees he had spoken with could receive a “documentation” in their
files, which Galant interpreted as a “coaching” or “occurrence” that could lead to discipline.
Walters pressed Gallant as to what he had discussed with employees of other retailers, and
Gallant explained that as an advocate for “Fair Workweek” he explained to employees of other 10
retailers what their rights were and how to file complaints with the city. He also told Walters, for
example, that he informed these employees that one of the most common violations he had
“collected” was regarding employers who hired new staff without first asking existing employees
if they wished to work additional hours, which he said was in violation of the Fair Workweek
policies. Walters informed Gallant that sharing this information with others was in violation of 15
Respondent’s conflict of interest policy, because he was “leaking” confidential or internal
information. Gallant denied that he was disclosing any confidential information, claiming that
what he discussed was public information.13 Walters responded that what he was doing was
damaging H&M’s brand, in that he was making the company look negative because they were
not following policy. According to Galant, Walters insisted to know what type of questions 20
Gallant was asking, which employees he was talking to, and what the nature of the internship
was. She wanted copies of the surveys he was conducting and wanted to know his (internship)
supervisor’s name. Gallant told Walters he would try to get her this information (via email) in
the next few days, even though he felt it was not right. Gallant asked Walters is she knew the
name of the union which represented H&M’s employees in New York City, and Walters said she 25
did not know, but could follow up about that later.
Walters also testified about her July 18 meeting with Gallant and Hunter, which she
conducted over the phone. Sometime prior to the meeting, according to Walters, she had phone
discussions with both Mikulski and Elena Siantz, Respondent’s Employee Relations Specialist 30
for the West Coast HR. Walters had informed them that Gallant was taking surveys from
employees and customers and was involved in an internship for some other organization. She
acknowledged not having any details that she could provide as to what exactly was being
disclosed or not and, discussed what steps should be taken to get some clarity on what kind of
information Gallant was gathering. They had concerns that the information Gallant had provided 35
was vague in nature. What was being shared? Employee schedules, sales information? Thus,
Walters testified, the “impetus” for the July 18 meeting with Gallant was to follow up on the
nature of his internship, to get more details and information on what exactly he was “providing”
12 “Shrink percentage” refers to loss reports due to thefts, and move reports apparently have to do with merchandise
presentation designs. Gallant was adamant about the fact that he did not disclose any of such information, or any
confidential information of any kind. He thus testified that the only subjects he discussed with other employees,
whether employees of H&M or other retailers, were Fair Workweek and OSHA policies (Tr. 61–62).
13 In that respect, Gallant testified that he spoke to fellow employees at H&M about their working conditions, talked
to customers about how they felt about such things as locked doors (and lack of air conditioning), and had spoken to
employees of other employers about their working conditions and working conditions at H&M (Tr. 101; 103).
JD(SF)–14–20
8
in these surveys, and to remind Gallant of Respondent’s conflict of interest policy.14 During the
meeting on July 18, Walters testified, they went over the conflict of interest policy, and asked
Gallant whether he was sharing information with other retailers. They inquired what did the
internship require him to share. According to Walters, Gallant’s reaction was one of concern and
hesitation, although he did agree to provide more information about the rules and responsibilities 5
of his internship. She denied saying anything about any potential damage to the H&M brand and
denied asking Gallant anything about the type of questions he was asking H&M employees or
others as part of his surveys. She admitted asking Gallant about his role and responsibilities in
the internship, and about the nature of the information being shared. Walters did not recall
whether Gallant had mentioned that he was not getting paid for his internship, or whether he 10
mentioned that his internship involved working on employee health & safety issues, or whether
he mentioned OSHA or Fair Workweek regulations.15 Walters admitted that she did ask Gallant
to submit written documentation about his internship, including any documents needed to
explain his role there.
15
Hunter, who was present in person at the store with Gallant during the July 18 meeting,
did not testify, but her contemporaneous notes taken during the meeting were introduced into
evidence (GC Exh. 2). These notes, which are three pages long written in longhand, to a
significant degree corroborate Gallant’s testimony about what occurred during the meeting.
Thus, the notes reflect that Gallant stated that the purpose of his internship was to ensure that 20
every work environment was safe, and Walters informing Gallant that his conduct was in
violation of Respondent’s conflict of interest rules, which were shown to him. The notes also
reflect, inter alia, the following:
 Gallant mentioned the lock door(s) situation at store #101 and broken A/C at sore #80 25
and his discussing these situations with employees and customers; Walters telling
Gallant these issues were outside of his role—and that discussing this information and
asking customers put H&M’s reputation at risk, and that sales advisors were not
trained in leadership;
 Walters telling Gallant that personal information cannot be shared; that “any info that 30
managers describe as confidential” is in policy; that the internship has ability to
disclose personal info about the business, and that reputation is at risk because of
disclosing information;
 Walters said she needed written role of internship description for approval, that
Gallant was not being straightforward with internship description, and that more 35
information was needed about the internship in order to investigate with employee
relationships;
 Gallant said that he is working with OSHA to canvas for fair workplace law, and that
he was not getting paid for this work; Walters reiterated that he is identified as an
14 I note, however, that Walters also admitted that the purpose of the July 18 meeting was to find out what
information was being “gathered.” (Tr. 158–159)
15 I would note, however, that Walters admitted that during their conversation at the Hayward store about a month
earlier, Gallant had informed her that part of his internship responsibilities was to ensure that workplace laws were
enforced and “something to the nature” that he was an advocate for Fair Workweek, although she could not recall
the specific law that Gallant mentioned (Tr. 154).
JD(SF)–14–20
9
H&M employee while speaking to outside law firms, and that he is disclosing
scheduling and financial info which is violating the policy;16
 Walters informed Gallant that he need not disclose info on all roles, only ones in
relationship with H&M, OSHA and competitors; the written information they
requested could be delivered via email or in person to store management, and that the 5
info needs to come from an internship supervisor; Galant explained that he talks to
other brand employees off the clock, which is within his rights, and talks about
offering new hires hours before existing employees;
 Gallant asked Walters for information about the East Coast union, and Walters
replied she did not know; Gallant also asked to discuss California labor laws and 10
H&M policies, and Walters informed him that labor laws were already incorporated
into the policies.
In light of the above, I find that Gallant’s testimony about what occurred during the
July 18 meeting is more accurate and reliable than Walter’s version. Although their testimony 15
overlaps to some degree, Gallant provided a far more detailed version of the July 18 events, and
his version is corroborated to a greater degree by Hunter’s contemporaneous notes, which
confirm details that Walters did not recall. Additionally, I note that on July 19 Gallant filed a
written “occurrence” regarding the July 18 meeting contained in his personnel records, where he
confirms many of the details he later testified about (GC Exh. 3).17 Accordingly, I credit 20
Gallant’s testimony over that of Walters regarding the July 18 meeting, to the extent that they
conflict. It should also be noted that Gallant had a change of heart and never turned over any
written information regarding his internship to Walters or others following the July 18 meeting.
E. The August 14 Conversation between Gallant and Siantz and its Aftermath25
Following the July 18 meeting described above, Walters sent an email to Mikulski, Siantz
and Jose Henriques, her upper-echelon HR counterparts at the national and regional levels,
briefly describing the July 18 meeting with Gallant. In this email, Walters in essence requests
that the Gallant matter be handled by them going forward. Indeed, the evidence suggests that 30
Walters played no direct role in the events that followed, including Gallant’s discharge, since she
turned these matters over to her counterparts, including Siantz.
On August 14, Gallant received a phone call from Siantz at the Emeryville store where he
was working. Siantz informed Gallant that they had never received the information that Walters 35
had requested during the July 18 meeting and that this call was a follow-up. Gallant testified that
he told Siantz he did not feel it was right for him to provide this information, that he was
improving working conditions and was protected by the NLRB. He asked Siantz to provide him
with a written form that showed the “legality” of what she was requesting. According to Gallant,
Siantz then asked how she could submit such form, whether by mail or email, and Gallant replied 40
that she could send it to Tom his store manager, and that Tom could serve him. Gallant testified
that he never received anything from Siantz. Siantz’s testimony about their August 14
16 It is notable, however, that Walters specifically admitted during her testimony that Respondent had no evidence
that Gallant had disclosed (or “leaked”) any confidential information (Tr. 166).
17 I note that in this filing, among other things, Gallant vehemently denies the accusation that he had spread (or
disclosed) and “confidential” information, an accusation he calls “totally false.” (GC Exh. 3)
JD(SF)–14–20
10
conversation dovetails with Gallant’s. She testified that she asked Gallant for a “role
description” of the internship and for additional information about the points that were being
audited and requested a time frame when these could be provided. She confirmed that Gallant
requested papers explaining the legality of what they were requesting and why it was needed, but
she said she was not a lawyer and could not supply this information. Following their phone call,5
Siantz wrote a form documenting her phone exchange with Gallant, which confirms the
substance of what is described above (GC Exh. 4).18
Siantz further testified that following her phone conversation with Gallant on August 14,
she consulted with Mikulski about what their next steps should be regarding Gallant. According10
to Siantz, she and Mikulski jointly decided to recommend that Gallant be terminated. The
reason, Siantz explained, was that they did not have the information requested from Gallant, and
that “it was unclear as to who the information that was being audited and any information
therein” (Tr. 180). Regarding this vague, quizzical reason for recommending termination, Siantz
was asked, during cross-examination, if Walters had ever informed her that Gallant was releasing 15
confidential information, Siantz replied: “No. I don’t know.” Asked if they had any evidence
that Gallant was releasing confidential information, Siantz replied: “We didn’t know where the
information he was collecting was going” (Tr. 189–190).19 I conclude that this is an admission,
albeit an evasive one, that indeed, as Walters had earlier admitted, Respondent had no evidence
that Gallant had in fact disclosed any confidential information.20
On August 16, Siantz emailed Blanco, informing her that they would be proceeding to
terminate Gallant and that (Emeryville) Store Manager Tom Baugh would be tasked with
carrying out the termination, which would be based on Gallant’s violation of Respondent’s
Conflict of Interest policy (R. Exh. 3).25
F. Gallant’s Termination on August 27
On August 27, Gallant was called to a meeting with Emeryville Store Manager Tom
Baugh and Department Manager Carmina Diaz. Baugh informed Gallant that this was his last 30
day at work, and read him the termination notice, introduced into evidence jointly by the General
Counsel and Respondent (Jt. Exh. 4). The termination notice states, inter alia, that he was being
terminated for violating the company’s conflict of interest policy. The notice also briefly
recounts Gallant’s meetings with Walters on July 18 and Siantz on August 14, and notes that due
to Gallant’s failure to provide the requested information regarding the “potential” conflict of 35
interest, the company was forced to terminate him. Separately, Baugh also prepared a “Security
Termination Checklist,” and a “H&M Employee Termination Form,” which Gallant was not
privy to (R. Exh. 4). In the Termination Form, which unlike the one read to Gallant was
18 Prior to her phone call with Gallant, Siantz had emailed Pamela Blanco, Respondent’s US HR representative,
attaching Walter’s July 18 email to her and others, and informing Blanco that she would keep her posted of her
planned conversation with Gallant that day (GC Exh. 6)
19 Siantz also testified that she did not know, at the time that she had her phone conversation with Gallant on August
14, that he had been advocating for Fair Workweek laws, or working on health and safety issues with employees, or
that he was partnering with OSHA. I do not find this credible, as Walters had specifically mentioned that Gallant
was engaged in these activities on her email dated July 18 addressed to Siantz and Mikulski (GC Exh. 6/p. 2).
Additionally, Walters had earlier disclosed much of this same information to Mikulski on an email dated June 13
(GC Exh. 10)
JD(SF)–14–20
11
typewritten, it states that the termination reason was “Violation of Company Policy,” and on a
separate box explains that Gallant “violated the companies (sic) conflict of interest policy by
discussing confidential H&M information with employees of other brands.” It is notable that
Respondent never articulated exactly what confidential information Gallant had disclosed,
perhaps because, as both Walters and Siantz admitted, Respondent had no such evidence.5
Following his meeting with Baugh and Diaz, Gallant was escorted out of the store. As he
was leaving, Gallant made a comment that he would “whistle blow” and leak info about the
violations that were happening.20
10
IV. Analysis
A. The Allegations Regarding the Events at the Hayward Store
In the complaint, the General Counsel alleges that Respondent violated Section 8(a)(1) of 15
the Act in May or June 2019 by creating the impression that it was engaged in surveillance of its
employee(s)’ protected activities, by interrogating employee(s) about their protected activities,
and by prohibiting employees from discussing their working conditions.21 Respondent, both in
its answer to the complaint and in its post-hearing brief, denies that it engaged in this conduct, or
that the conduct it engaged in was unlawful.20
As discussed above in the Facts section, I find that in late May or early June, a meeting
took place between Gallant and Walters at its Hayward store, after the “assessment center”
session ended. I credit Gallant’s version of the event and conclude that Walters asked Gallant
aside and took him into a (vacant) supervisor’s office, where their conversation took place. 25
I also find that during their conversation Walters did as follows:
 Told Gallant that she was aware he had been visiting the San Francisco store(s);
 After Gallant reported that he had been looking into the fire alarm and locked door(s)
situation, she asked him why he was doing that;30
 Told him it was not his job to do so, and that he should not be talking to other
employees about policies he had no knowledge about;
 After Gallant mentioned that he was involved in an “internship,” Walters asked him
what that was;
 Asked Gallant who the 5 employees were who had informed him they wanted to quit;35
 Asked Gallant what kind of questions he was asking in his surveys and asked for a
copy of such surveys.
The test of whether an employer has unlawfully created the impression of surveillance is
an objective one, that is, whether under all the circumstances an employee could reasonably 40
conclude from the statement or conduct in question that his/her protected activities had been
placed under surveillance. Bridgestone Firestone South Carolina, 350 NLRB 526, 527 (2007),
20 Diaz, who escorted Gallant out of the store, wrote a memo indicating that Gallant had said he was going to leak
information about the incident at store #101, and that things were going to blow up and people were going to come
to the store to check upon things (R. Exh. 5)
21 Complaint paragraph 5(a) (i through vi)
JD(SF)–14–20
12
quoting Flexsteel Industries, 311 NLRB 257, 257 (1993); Donaldson Bros. Ready Mix, Inc., 341
NLRB 958, 963 (2004). Thus, when an employer tells employees that it is aware of their
protected activities, but fails to identify the source of this information, an unlawful impression of
surveillance is created because employees could reasonably surmise that employer monitoring
has occurred. Conley Trucking, 349 NLRB 308, 315 (2007). In the above-described 5
circumstances, I find that Gallant could have reasonably concluded that his conversations with
employees at the San Francisco store(s) were under surveillance. Accordingly, I conclude that
Walter’s remark that she was aware that he had been visiting the San Francisco store(s) violated
Section 8(a)(1) of the Act.
10
In determining whether an unlawful interrogation has occurred, the Board looks at
whether under all the circumstances, the interrogation reasonably tends to restrain, coerce or
interfere with the rights guaranteed by the Act. Relevant factors in that determination include:
the nature of the information sought; the identity of the questioner; the place and method of the
questioning; and the truthfulness of the employee’s reply to the questioning. Rossmore House, 15
269 NLRB 1176,1177–1178 (1984), citing Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964);
Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985); Medcare Associates, Inc., 330 NLRB
935, 939 (2000). In applying the above factors to the facts at hand, I note that Walters held a
fairly elevated position as a district manager, and conducted the meeting at a supervisor’s office,
albeit a vacant one, and that her questions were insistent, numerous and accompanied by other 20
coercive statements, as described above and below. Accordingly, by asking Gallant why he was
looking into the fire alarm and locked doors situation, and asking who the employees he had
spoken to were, and by asking him what kind of questions he was asking in his surveys (and
asking him to provide a copy), I conclude Walters engaged in coercive interrogations in violation
of Section 8(a)(1) of the Act. On the other hand, I do not believe that Walters’ asking of Gallant 25
what he meant by an “internship” constituted an unlawful interrogation. In that regard I note that
Gallant was very vague and circumspect when he mentioned his involvement in an “internship,”
which elicited the response: “Internship? What’s that?” Walters might just as well have
responded “Huh?,” which is in essence what she did, not having the vaguest clue—at the time—
as to what Gallant was referring to, and certainly not knowing that it involved protected 30
activity.22 In such circumstances, I do not believe it was reasonable for Gallant to have felt
coerced when asked what the heck he was talking about. Once Gallant elaborated, and Walters
realized the internship was in a “workers coalition” (as she described it in her June 13 email—
GC Exh. 9), involved in investigating working conditions, did further interrogation become
coercive.35
Finally, the test as to whether other statements, aside from interrogations, are unlawful
under Section 8(a)(1) of the Act, is whether such statement(s) can reasonably be said to interfere
with the free exercise of employee rights under the Act, by being threatening or otherwise
coercive. If an employee could reasonably interpret or construct a statement as coercive, it 40
matters not what the intent of the speaker was, or whether another reasonable construct of the
statement is possible. Double D Construction Group, 339 NLRB 303, 303–304 (2003);
Concepts & Designs, Inc., 318 NLRB 948, 954 (1995), enfd. 101 F.3d 1243 (8th Cir. 1996);
Saginaw Control & Engineering, Inc., 339 NLRB 541 (2003). During the above described
22 Indeed, I cannot help but wonder, if in fact Walters’ reaction had been to say “Huh?” whether the General
Counsel would have alleged that to be an unlawful interrogation.
JD(SF)–14–20
13
conversation, Walters told Gallant that it was not his job to be doing the things he was doing, but
rather hers, and that he should not be talking to other employees about things he didn’t know
about. I find these statements are coercive, because in essence it informs Gallant that he should
not engage in protected activity and implies that disciplinary action could be taken should he
persist. Accordingly, I find that Respondent violated Section 8(a)(1) as alleged.5
B. The Allegations Regarding the July 18 Meeting at the Emeryville Store
As described in the Facts section, on July 18, Gallant was called to a meeting at the
Emeryville store where he worked, attended in person by Department Manager Hunter and by 10
Walters, who was speaking with them via phone. I credited Gallant’s version of what occurred
at this meeting, and indeed his testimony was corroborated to a large degree by Hunter’s
contemporaneous notes (GC Exh. 2). During this meeting, Walters repeated and doubled down
on some of the same conduct she had earlier engaged in at the Hayward store, discussed above,
which I have concluded was coercive and accordingly unlawful. Thus, for example, Walters 15
interrogated Gallant about the nature of his internship—which by now she knew involved
working in a “workers coalition that promoted employee rights—and further asked him to
produce copies of the “surveys” he had engaged in. She again interrogated him about his
conversation with fellow employees at H&M as well as his conversations with employees of
other retailers, and again informed him that his discussion with fellow employees were “outside 20
of his function” (meaning they were none of his business), which I earlier found to be unlawfully
threatening. Walters, however, went further than she had at the earlier meeting in Hayward.
Thus, she told Gallant that employees with whom he had spoken could receive written
“occurrences” in their files, which Gallant reasonably interpreted as suggesting disciplinary
action. She also told Gallant that his actions constituted a breach of Respondent’s conflict of 25
interest policy, inasmuch he had allegedly disclosed confidential information, although she never
specified what such information was.23 Additionally, Walters told Gallant that his activities were
harmful to the H&M brand, and making the company look bad, and persisted in having Gallant
disclose more details about his internship, which she requested in writing, including the identity
of his “supervisor.”30
Accordingly, I conclude Respondent violated Section 8(a)(1) of the Act during the July
meeting with Gallant, as alleged in paragraph 5(b)(i) through (xiii), by:
 Threatening unspecified reprisals by informing Gallant that his conduct violated its 35
Conflict of Interests policy, or might tarnish Respondent’s brand;
 Repeatedly interrogating Gallant about his protected concerted activities in different
ways, including directing him to produce written copies of surveys he had conducted,
and to provide the name of his internship supervisor;
23 This is particularly notable, as Walters admitted during her testimony that Respondent did not have any evidence
that Gallant had in fact disclosed any confidential information. It is evident that she and her fellow managers were
concerned that Gallant might do so, hence their repeated insistence that he provide abundant information about his
internship and related activities. The bottom line, however, as discussed below, is that the record is entirely devoid
of evidence that Gallant disclosed any confidential information, or that his activities somehow represented a conflict
of interest, as defined by Respondent’s rules.
JD(SF)–14–20
14
 Prohibiting Gallant from discussing working conditions with other employees,
whether Respondent’s or other employers’;
 Requiring Gallant to obtain written permission to participate in his internship.
C. The Allegations Regarding the August 14 Meeting between Gallant and Siantz245
As described above in the Facts section, I found that on August 14, Siantz phoned Gallant
at the Emeryville store. She informed Gallant that they had not received the information Walters
had directed him to produce earlier (on July 18), and that this was a follow-up request that he do
so. Gallant declined, informing Siantz that his conduct was protected by the NLRB and that he 10
was not obligated to produce the information Responded had demanded. As described above,
Gallant’s refusal to provide this information led to his termination a few days later.
Siantz’s conduct on August 14 mirrored and repeated Walter’s earlier conduct, which
I have found to be unlawful. Accordingly, I conclude that on August 14, Siantz unlawfully 15
interrogated Gallant by directing him to produce the information regarding his internship and
violated Section 8(a)(1) of the Act.
D. Gallant’s Discharge
20
As briefly discussed above, there is no dispute that Respondent discharged Gallant on
August 27, and that the reason given by Respondent for his discharge was his violation of its
“Conflict of Interest” policy because he had ostensibly disclosed “confidential information.”25
There is also no dispute that Gallant was engaged in protected concerted activity in the period
preceding his discharge, and indeed Respondent concedes the point.26 Moreover, it is clear and 25
undisputable from the sequence of events described in the Facts section that Gallant was
discharged for conduct—or misconduct—he allegedly engaged in while in the course of that
protected activity.
The General Counsel espouses 3 alternate theories in support of its allegation that 30
Gallant’s discharge was unlawful. First, it argues that under the Board’s rule in The Boeing Co.,
365 NLRB No. 154, slip op. at 4–5 (2017), Gallant was discharged under a (presumably valid)
rule that was applied to interfere with protected rights. He thus argues, citing KHRG Employer,
LLC, 366 NLRB No. 22, slip op. at 2 (2018), that even if the rule was lawful, Gallant was
engaged in protected activity and did nothing that was egregious enough so as to lose the Act’s 35
protection.27 Secondly, the General Counsel alternately argues that Gallant’s discharge was
24 Complaint paragraph 5(c).
25 See, GC Exh. 12 (email dated August 21 directing Store Manager Baugh to terminate Gallant).
26 See, Respondent’s post-hearing brief, p. 38. Clearly, there can be no doubt that Gallant’s conduct in discussing
working conditions with his fellow employees, as well as employees of other employers, and his discussing with
them their rights under “Fair Workweek” and OSHA regulations, is protected activity.
27 In so arguing, the General Counsel seems to be putting the cart before the horse. Thus, what the General Counsel
appears to be arguing, as alleged in paragraph 8 of the complaint, is that the rule under which Gallant was
discharged was applied unlawfully, because it was used to restrict Section 7 activity. Such conduct, however, falls
under the analytical framework discussed in the third prong of Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004), a prong left untouched by Boeing. See, Maine Coast Regional Health Services, 369 NLRB No. 51, slip op at
2 fn. 5 (2019). Thus, Boeing is inapplicable in this case. Nonetheless, although Lutheran Heritage appears to be
JD(SF)–14–20
15
unlawful because it had its genesis in the unlawful interrogations he was subjected to, and his
failure to provide the information sought in those unlawful interrogations. Finally, the General
Counsel additionally argues that Gallant’s discharge was unlawful under a Wright Line
analysis.28 Thus, it argues that it established that Gallant’s protected activity was a motivating
factor in his discharge, and that Respondent then failed to meet its burden to show that it would 5
have discharged Gallant even in the absence of such protected activity.
Respondent, on the other hand, relying solely on a Wright Line analysis, argues that the
General Counsel failed to meet its burden because it did not establish a causal link between
Gallant’s protected activity and his discharge, including the fact that there was no evidence of 10
animus or disparate treatment.
For the reasons discussed below, I conclude that Gallant’s discharge was unlawful, but
not under the analytical framework discussed by the parties, both of whom missed their mark.29
Rather, I conclude that the facts of this case place it squarely within the analytical framework of 15
NLRB v. Burnup & Sims, 379 U.S. 21 (1964). Under Burnup & Sims, the General Counsel must
first establish that the discharged employee was engaged in protected activity, and that the
alleged “misconduct” for which that employee was discharged occurred during the course of
such protected activity. Thus, if such alleged misconduct is part of the res gestae of the
employees’ protected activity, the employer’s motive is not at issue—and therefore Wright Line20
is not the proper analytical framework, contrary to what the General Counsel and Respondent
suggested. Once the General Counsel meets this burden, the burden switches to the employer to
show that it had a good faith belief that the employee engaged in misconduct in the course of his
protected activity. If this burden is satisfied, the burden moves back to the General Counsel to
establish that the misconduct did not, in fact occur. If the General Counsel is successful, the 25
discharge is unlawful under Burnup & Sims.
As discussed above, it is clear, and undisputed, that Gallant was engaged in protected
activity. It is also clear that it was his alleged misconduct, during the course of such protected
activity, that led to his discharge. Thus, Respondent accused Gallant of violating its “Conflict of 30
Interest” policy because he was allegedly involved in “accepting employment or participating in
a professional activity that may require disclosing H&M confidential information,” which is the
third prong of its “Conflict of Interest Policy”. The “employment” or “participating in a
professional activity” that Gallant was engaged in was his internship and activities on behalf of a
“workers coalition,” to quote Walters (GC Exh. 9), for which he discussed and advocated on 35
behalf of workers’ rights under Fair Workweek and OSHA policies and regulations.30 These
activities, included, again quoting Walters, “reviewing staff schedules, legal postings,
consistency of policies from store to store/employee to employee, store safety & even fielding
right on point, there is another analytical framework applicable in this case which trumps Lutheran Heritage, as
discussed below, and makes this theory a secondary one, if not moot.
28 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983).
29 Where all the acts have been fully litigated, such as in this case, I am permitted to find a violation on a different
theory than explicitly plead or advanced by the General Counsel. Hawaiian Dredging Construction Co., 362 NLRB
81, fn. 6 (2015), and cases cited therein; Noel Canning, 364 NLRB No. 45, slip op. at 5 (2016).
30 See Hunter’s notes of the July 18 meeting (GC Exh. 2).
JD(SF)–14–20
16
employee relation issues.”31 It is evident that Respondent was concerned about what Gallant was
doing, and more specifically about what he might be uncovering—and revealing—in the course
of his activities on behalf of the “workers coalition” he was interning for.32
It is accordingly clear that the General Counsel met its initial burden under Burnup & 5
Sims in establishing that Gallant was terminated for conduct he engaged in while in the course of
engaging in protected activity. The burden then shifts to Respondent to show that it had a good
faith belief that Gallant engaged in misconduct, a misconduct of the type that would forfeit the
Act’s protection. It is here that Respondent’s case falls apart and crumbles to the ground.
Respondent in essence accused Galant of revealing or disclosing “confidential information,” an 10
accusation that Gallant vehemently denied. More importantly, both Walters and Siantz admitted
that Respondent never had any evidence whatsoever that Gallant had in fact revealed or
disclosed any confidential information. Indeed, Respondent has never stated what “confidential
information” Gallant had supposedly revealed—because it cannot, since there is no evidence that
it ever happened.33 This fatally undermines any defense that Respondent might claim that it had 15
a “good faith” belief that Gallant engaged in misconduct. In that regard, it must be noted that
under Burnup & Sims, employees engaged in conduct such as Gallant are the beneficiaries of a
“heightened standard” of protection, which means that an employer’s mere suspicion or
conjecture that an employee may have engaged in misconduct is inherently insufficient to meet
the “good faith” requirement that misconduct took place. Such good faith must be based on 20
reasonable, objective facts—not on suspicion or concern, otherwise the “heightened standard” of
protection becomes meaningless.34 Accordingly, I conclude that Respondent never satisfied the
second prong of the shifting burden under Burnup & Sims, since it did not—and could not, under
these facts—establish that it had a good faith belief that Gallant had engaged in misconduct, that
is, breached its “Conflict of Interest” policy. Respondent therefore violated Section 8(a)(1) of 25
the Act by discharging Gallant.
As briefly discussed above, there is a second viable theory under which Gallant’s
discharge would also be unlawful. Thus, it would appear that Respondent applied and enforced
its “Conflict of Interest” policy to suppress and punish Gallant’s protected activity. As such, 30
Respondent’s application of this rule would satisfy the requirements under the third prong of
Lutheran Heritage, supra., which as mentioned earlier was left untouched by Boeing.
Accordingly, I conclude that Gallant’s discharge was also unlawful because an otherwise facially
valid rule was applied to restrict the exercise of Section 7 rights.
35
CONCLUSIONS OF LAW
1. Hennes & Mauritz, LP d/b/a H&M (Respondent) is an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
40
31 GC Exh. 9.
32 This “workers coalition” was United for Respect, the Charging Party, the identity of which Gallant never
revealed.
33 In that regard, it is notable that Gallant’s termination notice speaks of his “potential” conflict of interest—not an
actual one (Jt. Exh. 4).
34 Indeed, to rule otherwise would place the General Counsel in an untenable position: having to prove a negative,
that is, having to prove that something for which there is no evidence of it having occurred, did not, in fact, occur.
JD(SF)–14–20
17
2. Respondent violated Section 8(a)(1) of the Act by creating the impression that its
employees’ protected activities is under surveillance; by interrogating employees regarding their
protected activities and their reason for engaging in said activities; by informing employees not
to speak to other employees about their working conditions; by telling employees to provide the
identity of other employees with whom they had communicated with regarding their working 5
conditions; by threatening unspecified reprisals for ostensibly violating its policies and tarnishing
its reputation; by requiring employees to obtain written permission before engaging in protected
activities; by requesting copies of surveys taken by employees in the course of engaging in
protected activities; and by threatening adverse consequences if its employees chose the Union
as their representative.10
3. Respondent additionally violated Section 8(a)(1) of the Act by discharging its
employee Nickolas Gallant on August 27, 2019, because he engaged in protected concerted
activity, and by applying an otherwise valid work rule to restrict protected activity.
15
4. The unfair labor practices committed by Respondent, as described above, affect
commerce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
20
The appropriate remedy for the Section 8(a)(1) violations I have found is an order
requiring Respondent to cease and desist from such conduct and take certain affirmative action
consistent with the policies and purposes of the Act.
Specifically, the Respondent will be required to cease and desist from: creating the 25
impression that its employees’ protected activities is under surveillance; interrogating employees
regarding their protected activities and their reason for engaging in said activities; informing
employees not to speak to other employees about their working conditions; telling employees to
provide the identity of other employees with whom they had communicated with regarding their
working conditions; threatening unspecified reprisals for ostensibly violating its policies and 30
tarnishing its reputation; requiring employees to obtain written permission before engaging in
protected activities; requesting copies of surveys taken by employees in the course of engaging
in protected activities; applying otherwise valid work rules to restrain protected activity; and
discharging employees because they have engaged in protected concerted activity.
35
Respondent shall also cease and desist, in any other manner, from interfering with,
restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act.
Having found that Respondent unlawfully discharged Gallant, Respondent must offer
him reinstatement to his former job or if that job no longer exists, to a substantially equivalent 40
position without prejudice to his seniority or any other rights or privileges previously enjoyed.
The Respondent shall make Gallant whole for any loss of earnings and other benefits suffered as
a result of the discrimination against him. The make-whole remedy shall be computed in
accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed
in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River 45
Medical Center, 356 NLRB 6 (2010). In accordance with King Soopers, Inc., 364 NLRB No. 93
JD(SF)–14–20
18
(2016), the Respondent shall compensate him for search-for-work and interim employment
expenses regardless of whether those expenses exceed their interim earnings. Search-for-work
and interim employment expenses shall be calculated separately from taxable net backpay, with
interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in
Kentucky River Medical Center, supra. In accordance with Don Chavas, LLC d/b/a Tortillas 5
Don Chavas, 361 NLRB 101 (2014), the Respondent shall compensate him for the adverse tax
consequences, if any, of receiving a lump sum backpay awards, and, in accordance with
AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), the Respondent shall, within 21 days
of the date the amount of backpay is fixed either by agreement or Board order, file with the
Regional Director for Region 32 a report allocating backpay to the appropriate calendar year for 10
each employee. The Regional Director will then assume responsibility for transmission of the
report to the Social Security Administration at the appropriate time and in the appropriate
manner.
Respondent shall also be required to remove from its files any references to the unlawful
termination of Gallant and to notify him in writing that this has been done and that his15
terminations will not be used against him in any way.
Respondent shall post an appropriate informational notice, as described in the attached
appendix. This notice shall be posted in the Employer's Emeryville store (store No. 145) as well
as store No. 80 and store No. 101 in San Francisco, or wherever the notices to employees are
regularly posted for 60 days without anything covering it up or defacing its contents.35 In 20
addition to physical posting of paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. 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 25
expense, a copy of the notice to all current employees and former employees employed by the
Respondent at any time since May 1, 2019. When the notice is issued to the Employer, it shall
sign it or otherwise notify Region 32 of the Board what action it will take with respect to this
decision.
Accordingly, based on the foregoing findings of fact and conclusions of law, and on the 30
entire record, I issue the following recommended36
ORDER
Respondent, Hennes & Mauritz, LP d/b/a H&M, Emeryville, California, its officers, 35
agents, successors, and assigns, shall
35 The General Counsel submits that Respondent should post Notices in stores Nos. 80 and 101 in San Francisco in
addition to the store in Emeryville where Gallant worked, because Gallant engaged in protected concerted activity
by interacting with the employees at those stores, which he visited on several occasions, and Gallant’s discharge
could reasonably be expected to have had a coercive impact on those employees. I agree; word travels fast on such
circumstances.
36 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.
JD(SF)–14–20
19
1. Cease and desist from:
(a) Engaging in any of the conduct described immediately above in the remedy
section of this decision;5
(b) In any other like or related manner interfering with, restraining, or coercing
employees in their exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act:10
(a) Within 14 days from the date of this Order, if it has not already done so, offer
Gallant full reinstatement to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his seniority or any other rights
or privileges previously enjoyed.15
(b) Make Gallant whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him, in the manner set forth in the remedy section
of this decision.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated 20
by the Board or its agents, all payroll records, social security payment records,
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 store No. 145 in Emeryville, 25
and Stores No. 80 and No. 101 in San Francisco, where notices to employees are
customarily posted, copies of the attached notice marked “Appendix.”37 Copies of
the notice, on forms provided by the Regional Director for Region 32, 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 30
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 other electronic means, if the
Respondent customarily communicates with its employees by such means.
37 If the facilities involved in these proceedings are open and staffed by a substantial complement of employees, the
notices must be posted within 14 days after service by the Region. If the facilities involved in these proceedings are
closed due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices must be posted within 14 days after
the facilities reopen and a substantial complement of employees have returned to work, and the notices may not be
posted until a substantial complement of employees have returned to work. Any delay in the physical posting of
paper notices also applies to the electronic distribution of the notice if the Respondent customarily communicates
with its employees by electronic means. If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(SF)–14–20
20
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
facilities involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees 5
employed by the Respondent at any time since May 1, 2019.
(e) Within 21 days after service by the Region, file with the Regional Director for
Region 28, 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.10
Dated, Washington D.C. June 22, 2020
15
Ariel L. Sotolongo
Administrative Law Judge
JD(SF)–14–20
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
In recognition of these rights, we hereby notify employees that:
WE WILL NOT create the impression that their protected activities, such as speaking with other
employees about hours, wages and working conditions, are under surveillance;
WE WILL NOT interrogate our employees about their protected activities such as by asking
employees why they discussed working conditions with other employees or asking to reveal the
nature of other employees’ concerns, or the identity of those employees;
WE WILL NOT threaten our employees with adverse consequences or unspecified reprisals by
informing them that they should not be discussing working conditions with other employees, or
suggesting that they are not qualified to do so, or informing them that doing so tarnishes our
reputation and our brand;
WE WILL NOT inform our employees that they require written permission before they engage in
protected activity such as joining or requesting assistance from outside groups that advocate for
employee rights;
WE WILL NOT demand that you provide us with copies of surveys you may have taken from other
employees, customers or members of the public regarding wages, hours or working conditions;
WE WILL NOT, discharge you or otherwise discriminate against you because you have engaged in
protected activities such as described above;
WE WILL NOT apply or enforce work rules to restrict you from engaging in protected activities
such as described above;
JD(SF)–14–20
WE WILL within 14 days from the date of the Board’s Order, offer Nickolas Gallant full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Nickolas Gallant whole for any loss of earnings and other benefits resulting from
his termination, less any net interim earnings, plus interest.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any reference
to the unlawful discharge of Nickolas Gallant and WE WILL, within 3 days thereafter, notify him
in writing that this has been done and that the discharge will not be used against him in any way.
WE WILL NOT in any like or related matter interfere with, restrain, or coerce you in the exercise of
rights listed above.
HENNES & MAURITZ, LP D/B/A H&M
(Employer)
Dated By
(Representative) (Title)
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
Oakland Federal Bldg., 1301 Clay Street, Room 300-N, Oakland, CA 94612-5224
(510) 637-3300, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/32-CA-250461 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, (510) 671-3034.