NORTH WEST RURAL ELECTRIC COOPERATIVE

National Labor Relations Board - Administrative Judge Opinions

Sep 28, 2016

18-CA-150605 (N.L.R.B. Sep. 28, 2016)

JD–96–16
Orange City, IA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NORTH WEST RURAL ELECTRIC
COOPERATIVE
and Case 18–CA–150605
DAVID JAMES SVOBODA, an Individual
Abby E. Schneider, Esq. and
James L. Fox, Esq.,
for the General Counsel.
James M. Walters, Esq. and
Fred L. Dorr, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
THOMAS M. RANDAZZO, Administrative Law Judge. This case was tried in Sioux
City, Iowa, on January 26–27, 2016. David James Svoboda, an Individual (the Charging Party)
filed a charge on April 21, 2015,1 and the General Counsel issued a complaint and notice of
hearing in this matter on October 5, 2015.2
The complaint alleges that North West Rural Electric Cooperative (the Respondent)
violated Section 8(a)(1) of the National Labor Relations Act (the Act) by discharging the
Charging Party on December 8, 2014, because he engaged in concerted activities for the purpose
of mutual aid and protection by posting comments regarding his concerns about safety on a
Facebook page devoted to issues of workplace safety in the electrical industry. In addition, the
complaint alleges that Respondent violated Section 8(a)(1) of the Act by maintaining and
enforcing Conduct Policy C-6 which instructs employees to use the Respondent’s internal
grievance procedure to resolve complaints or grievances, thereby prohibiting employees from
utilizing other methods to resolve such complaints or grievances, including by discussing them
with one another; and Conduct Policy C-9 which prohibits or interferes with employees’ rights to
discuss and disclose wages and other terms and conditions of employment. The Respondent, in
its answer, denied that it violated the Act as alleged.

1 An amended charge was filed by the Charging Party on June 10, 2015.
2 All dates are 2015, unless otherwise indicated.
JD–96–16
On the entire record,3 including my observation of the demeanor of the witnesses,4 and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following
5
FINDINGS OF FACT
I. JURISDICTION
The Respondent is an Iowa cooperative with an office and place of business in Orange 10
City, Iowa, where it is engaged in the distribution of electricity.5 The Respondent admits, and I
so find, that annually in conducting its business operations described above, it purchased and
received goods valued in excess of $50,000 directly from points located outside the State of Iowa
and derived gross revenues in excess of $250,000.
15
It is also admitted, and I so find, that Respondent has been engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
20
A. The Facts
1. Background
The Respondent is an electricity distribution cooperative which purchases electricity and 25
delivers it to its rural customers. The cooperative, with its main office in Orange City, Iowa,
serves a four-county area in northwest Iowa, and is divided into 4 districts: District 1 (Orange
City), District 2 (O’Brien County), District 3 (Plymouth), and District 4 (Ida). Lyle Korver is the
Respondent’s CEO and general manager, Douglas Alons is the operations director, and Derrick
Haak is the assistant operations director. The Respondent’s districts each have a line crew. The 30
lineman crew involved in this case is the Orange City, Iowa crew in District 1.
The Respondent employs electrical workers or “linemen,” who are responsible for the
day-to-day maintenance of the electrical distribution system, which includes the new
construction of power lines and service calls to deal with electrical problems. Much of the work 35

3 Abbreviations used in this decision are as follows: “Tr.” for transcript; “GC Exh.” for General
Counsel’s Exhibit; “R. Exh.” for Respondent’s Exhibit; “GC Br.” for the General Counsel’s brief; and “R.
Br.” for Respondent’s brief.
The Respondent filed a motion to correct the transcript on March 1, 2016. The motion requested that
28 mistakes in wording or spelling be corrected. The General Counsel indicated in writing that he had no
objection to the motion. On that basis, the Respondent’s motion to correct the transcript is granted.
4 In making my findings regarding the credible evidence, including the credibility of the witnesses, I
considered the testimonial demeanor of such witnesses, the content of the testimony, and the inherent
probabilities based on the record as a whole. In addition, I have carefully considered the testimony in
contradiction to my factual findings, but I have discredited such testimony.
5 The complaint, which alleged that Respondent was engaged in both the “generation and distribution
of electricity,” was amended at trial to allege only the “distribution of electricity.”
JD–96–16
3
involves the setting of power line poles and installing or repairing the electrical wires either by
climbing the poles or by using aerial baskets or buckets on trucks. Linemen work with live
electrical wires containing 7200 volts of electricity. It is undisputed that lineman work is
inherently dangerous. Touching a live electrical wire can result in injury, ranging from shock to
serious injury or death. The Respondent conducts monthly safety meetings for its employees in 5
which topics such as close calls are discussed in the Respondent’s service area or in the
surrounding areas covered by other cooperatives or companies.
The Respondent has had a collective-bargaining relationship with the International
Brotherhood of Electrical Workers, Local Union No. 231 since 1966. (R. Exh. 2.) That 10
relationship has been embodied in successive collective-bargaining agreements, the most recent
of which is effective from August 1, 2015, to July 31, 2019. (Tr. 226.) The previous collective-
bargaining agreement which was in effect at the time of David Svoboda’s discharge was
effective from August 1, 2012, to July 31, 2015. The collective-bargaining agreement describes
the bargaining unit as consisting of: 15
All maintenance and construction employees, including material handlers,
warehousemen, service men, customer service technicians, boom truck operators,
groundmen, tree trimmers, lead linemen, linemen, apprentice linemen, electricians
and foremen; excluding line superintendent, office clericals, guards and 20
supervisors as defined in the National Labor Relations Act, as amended. (R. Exh.
2).
At the time the 2012-2015 collective-bargaining agreement was negotiated, Svoboda
served as a union steward, and along with the local union president, was signatory to that 25
collective-bargaining agreement as one of the Union’s “authorized representatives.” (R. Exh. 2,
p. 17; Tr. 107.) There is no evidence, however, that Svoboda held any position with the Union at
the time of this discharge in December 2014. In fact, Svoboda held a nonunit position at the time
of his discharge.
30
2. The Respondent’s Employee Conduct Policies
The Respondent maintains several employee conduct policies. In particular, Policy No.
C-6 and Policy No. C-9 are relevant to this proceeding, and it is undisputed that those policies
were in effect at the time of Svoboda’s discharge. Policy No. C-6 is titled “Attitude, Spirit and 35
Cooperation,” and Policy No. C-9 is titled “Personal Conduct.” (GC Exh. 11.) Respondent
Policy No. C-6, which in part involves employee methods to resolve complaints or grievances,
states in its entirety:
SUBJECT: Attitude, Spirit and Cooperation40
I. OBJECTIVE
To encourage cooperation and a positive attitude between employees and their
supervisors, the member-consumers and other employees.
45
II. POLICY CONTENT
JD–96–16
4
Cooperative employees are expected to perform their jobs in a courteous and
professional manner. Employees are expected to use the Cooperative’s problem-
solving procedure to resolve misunderstanding or disagreements that could
otherwise affect the employees’ ability to do their jobs in an efficient and positive
manner.5
III. PROVISIONS
Bad attitudes, griping, complaining, rudeness, surliness and so forth are
characteristics that everyone occasionally exhibits. However, when such behavior
continues on a day-to-day basis, it can cause conflicts and disruptions that result 10
in inefficient job performance and, if exhibited in the presence of the
Cooperative’s member-consumers, a loss of goodwill.
The Cooperative recognizes that everyone has an occasional bad day, but rude or
surly conduct will not be tolerated from anyone on a consistent basis. Employees 15
should use the grievance procedure (Policy No. 36)6 when they have complaints
about their working conditions. Even when complaints cannot be resolved to
their satisfaction, employees are expected to perform their jobs in a cooperative,
courteous, and professional manner. The failure to do so may result in discipline,
including termination. 20
IV. RESPONSIBILITY
The General Manager, through the department heads, shall be responsible for the
administration of this policy.
(GC Exh. 11(a)) 25
In addition, Respondent’s Policy No. C-9 addresses employees’ rights to discuss or
disclose certain terms and conditions of employment. Policy No. C-9 states in its entirety as
follows:
30
SUBJECT: Personal Conduct
The success of North West REC (NWREC) depends upon the confidence and
respect employees generate while at their workstations, representing NWREC at a
business function, or in social gatherings. You must work with others, to comply 35
with the rules and regulations of NWREC, to adjust to change, and to promote the
best interests of NWREC. Where conduct does not meet expectations, corrective
action, which could include termination, will take place.
It is impossible to provide an exhaustive list that identifies every type of conduct 40
that may result in corrective action or termination. However, in order to offer you
some guidance, the following list provides examples of conduct that may result in
corrective action up to and including discharge: poor or inefficient job
performance; poor attitude; failing to keep the premises clean and in a sanitary
condition; dishonesty; failing to maintain effective working relationships with 45

6 Neither a copy of Policy No. 36 nor a description of that policy is contained in the record.
JD–96–16
5
others; causing or contributing to conflicts between employees; failure to follow
instructions; sexual and other forms of harassment; discrimination or misconduct;
willful disregard of the employer’s policies and procedures; disclosure of
confidential information; possession, distribution, sale, use or being under the
influence of alcoholic beverages or illegal drugs while on NWREC premises or 5
work-sites or while on duty, or while operating a vehicle leased or owned by
NWREC; misconduct (such as theft, falsification of employment or other
NWREC records, assault, insubordination, use of profanity, fighting, making
threats, possession of firearms while on NWREC business or on NWREC
premises, and defacement of property); excessive and unnecessary use of 10
NWREC supplies, especially for personal purposes; excessive absenteeism or
tardiness; and failure to report for, or call in, to work.
The general prohibition of possession of firearms notes herein may be waived,
under limited circumstances, on written grant by NWREC’s CEO/Manager of an 15
application for waiver first presented in writing by an employee. Any such
waiver application shall outline the reason for the request, confirm the employee
lawfully possesses such firearm and be approved in writing according to
limitations or conditions which the CEO/Manager may apply.
20
3. David Svoboda’s employment as a lineman with the Respondent from 2007 to 2014
David Svoboda began working for the Respondent as an apprentice lineman in February
2007. Doug Alons served as Svoboda’s direct supervisor while he was employed by the
Respondent. While Svoboda previously completed apprenticeship training at a previous job with 25
a different company in another state, the Respondent required all of its new employees to
complete its own 1-year probationary period before becoming journeyman linemen. Svoboda
received two performance reviews while an apprentice that contained overall positive comments
by management about his work, and his managers even recommended that he advance early in
the apprenticeship program. (R. Exhs. 3 and 4.) 30
In an “apprenticeship review” for Svoboda conducted in September 2007 by then
assistant manager, Darwin Dirks, it was noted that the Respondent found Svoboda “to be very
proficient in all aspects of line work,” and while taking over for a coworker who was
recuperating, Svoboda did “a good job of operating the basket and performing the necessary 35
aerial work.” (R. Exh. 3.) Dirks also provided some constructive feedback, noting that
Svoboda’s supervisor had to inform him to “heed warnings from other linemen and stay clear of
poles when hotline work is being performed above,” and even though they were glad to consider
Svoboda’s offers on how to perform some work differently, he needed to “be open to accepting
[the Respondent’s] ways of doing things.” (R. Exh. 3.) Dirks then stated it was management’s 40
recommendation that Svoboda be promoted to the 8th step of the apprentice program, and he
noted that Respondent would even consider “shortening [that] step” for Svoboda. (R. Exh. 3.)
In a second apprenticeship review for both Svoboda and fellow lineman, Phil Elgersma,
Dirks stated that Doug Alons was “impressed with [Svoboda’s] work ethic and the fact that he is 45
always ready to get to work in the morning without being told,” and that he should “not be too
eager in his line work and sacrifice safety in the process.” (R. Exh. 4.) Dirks stated that Svoboda
JD–96–16
6
was “doing a good job and work[ed] well and [got] along with [his] fellow employees.” After
Svoboda’s first year with the Respondent, based on his overwhelming positive reviews, he was
advanced to journeyman lineman. (R. Exhs. 3 and 4.)
The record establishes that Svoboda was issued several disciplinary warnings over his 7 5
year career with the Respondent. On June 10, 2011, he was issued his first warning for an
“unsafe operation by standing on the forks of the fork lift to work on a garage door without using
a work platform and fall protection.” (GC Exh. 2.) Also, Svoboda was issued a second warning
dated September 25, 2012, for his failure to stay in the local area while he was on call, which
resulted in a longer than necessary outage due to the difficulty in getting other employees to 10
respond to fix the outage. (GC Exh. 3.) The discipline states that Svoboda will have to
“demonstrate the ability to get along well and work in a cooperative effort with his fellow
employees” and “make sure he is in the area and available for outages when on call.” (GC Exh.
3.)
15
In December 2013, after Phil Elgersma was chosen over Svoboda for the lead lineman
position on the District 1 crew, Svoboda requested a meeting with Korver and Alons wherein he
expressed his concerns for being passed over for that position. In a memo drafted by Korver
concerning that meeting, Korver recorded that he and Alons informed Svoboda that he had a
“past history of not cooperating at times and a bad attitude.” (GC Exh. 5, p. 1.) They informed 20
Svoboda that “his attitude and cooperation need to change significantly.” (GC Exh. 5, p. 2.)
Finally, Korver stated:
I made it very clear to Dave that we didn’t want to terminate his employment, but
based on his previous warnings and how things were going, we were very close. 25
Either he needs to show significant improvement in his attitude and cooperation
or he will be terminated as an employee of North West REC. (GC Exh. 5, p.2).
At the hearing in this case, Svoboda did not dispute the issuance of the above-mentioned
disciplinary warnings on June 10, 2011, and September 25, 1012, or that he was informed by 30
Korver on December 18, 2013, that his next infraction could result in his discharge.7 However,
despite those warnings, Svoboda credibly testified that for the time period from December 2013
until December 2014, he had no instances in which his supervisors or managers discussed an
alleged bad attitude with him. (Tr. 31–32.) There is also no evidence that Svoboda was issued
any further warnings or discipline during that time period.35
4. Svoboda is selected for the position of GPS & Staking Technician in October 2014
Svoboda worked as a lineman until October 2014, when he applied and was selected for
the newly created position of GPS & Staking Technician. The new position was a full-time 40
position at the same pay he was earning as a lineman, but the position was not included in the
collective-bargaining unit. In his new position, Svoboda worked “staking” lines, using GPS
(Global Positioning System) to determine where utility poles should be installed. He then staked
the lines, determining the pole size, span lengths of utility wires, and determining the type of

7 There is also no allegation or evidence that the two disciplinary warnings, or the warning on
December 18, 2013, were issued by the Respondent for discriminatory or unlawful reasons.
JD–96–16
7
fixtures to be uses to install the lines. (Tr. 250–251.) The staking work was previously
performed by managers Alons and Haak, and the position was created to help those managers
“streamline” their work. (Tr. 250–252.) In an email from Korver dated October 13, 2014, to a
number of Respondent’s employees, including managers, directors, coordinators, and advisors,
Korver announced that “we selected Dave Svoboda to fill the new Staking & GPS Technician 5
position. Dave will start this position in the next couple of weeks so that he can work with the
Global Mapping Solutions crew in continuing the big project we have going with completing a
GPS inventory of our system.” Korver went on to state that he was pleased to fill the position
with a current employee and he thanked the other employees who expressed an interest in the
position as well. (R. Exh. 6.)10
As a lineman, Svoboda worked with a crew on a daily basis. However, in the new
position of GPS & Staking Technician, he only worked with a crew approximately half of his
time at work. In addition, while he continued to work Monday through Friday, he only worked
the weekends when there were emergency calls or outages. Phil Elgersma, the Orange City 15
District 1 lead lineman, testified that when Svoboda was selected for the GPS & Staking
position, the crew worked with him only “occasionally” and “a lot less,” and he would work with
the crew “only on some days.” (Tr. 325.) Svoboda worked for approximately 2 months as the
GPS & Staking Technician without incident until December 8, 2014, when he was discharged.
20
5. The Linejunk Facebook page serves as an on-line forum for linemen and electrical
workers
“Linejunk” is an on-line forum that started in 2013 with a website and a Facebook page
that pertains to linemen and electrical workers. (Tr. 33.) Its Facebook page states that it was 25
started in 2013 to bring recognition to the trade with apparel, but has grown “to also provide
information about and to the trade.” (GC Exh. 8.) Linejunk describes itself as “the most
followed page in the industry” and “the premiere place to go if you are a lineman.” (GC Exh. 7
and 8.) The administrators of the Linejunk Facebook page invite people to “post what [they]
want, when [they] want.” (GC Exh. 8.) The Facebook page shows that at the time of the hearing 30
in this matter, nearly 65,000 people “liked” the Linejunk page. By “liking” the Facebook page,
they clicked a button on the page indicating they “like” it, and by doing so, updates from the
page show up on their personal newsfeeds which are on the first screen they see when they sign
on to Facebook.com. (GC Exh. 7; Tr. 41–44.)
35
On the Linejunk Facebook page, the right side contains “newsfeeds.” (GC Exh. 7; Tr. 37–
41.) While the administrators of the Facebook page can choose to change the photographs at the
very top of the page and the descriptions on the left-hand side of the page from time to time, the
news feeds are constantly changing as the Facebook users post comments and pictures. Svoboda
credibly testified that the newsfeeds on the Linejunk Facebook page pertain to “safety concerns” 40
and “pictures that other linemen would have posted.” (GC Exh. 7; Tr. 39.) Visitors to the
Linejunk Facebook page are able to post comments or pictures on the newsfeeds themselves, or
they can submit posts for the page’s administrator to publish on the newsfeed. The updates to
the page would trigger a new newsfeed item for the page’s followers, and Svoboda viewed the
Linejunk Facebook page on a daily basis because it showed on his Facebook newsfeeds. (Tr. 56.) 45
You do not have to be a member or follower of the Linejunk page to see the Linejunk newsfeeds
because in addition to the people who “like” the page, the general public can view it. (Tr. 43.)
JD–96–16
8
If you “like” a page on Facebook, other people can see that you “liked” it. Svoboda
testified that some of his coworkers also “liked” the Linejunk Facebook page. Svoboda’s
Facebook page alerted or notified him that Luke Lathrop, Mike Berkenpas, and Gabe Roetman,
three of his fellow linemen who were his Facebook friends, “liked” and followed the Linejunk 5
page. (Tr. 42–45.) In addition, Elgersma testified that he “liked” the Linejunk Facebook page,
so Facebook notified him of other coworkers who “liked” it. (Tr. 314–315.) Elgersma testified
that besides Svoboda and himself, his other coworkers who “liked” the Linejunk page were Luke
Lathrop, Scott Wubben, and Mike Berkenpas. (Tr. 340.) Svoboda testified that for the period of
time around 6 to 8 months before his termination in December 2014, he discussed the Linejunk 10
Facebook page with his coworkers, in particular, Luke Lathrop and Alex Jungers. The topics he
discussed with them were “different safety concerns” or pictures that were posted. (Tr. 57.)
6. The administrator of the Linejunk Facebook Page posted a safety inquiry on December 1,
2014, and Svoboda posted a response to that inquiry on December 2, 201415
Svoboda testified that he viewed the Linejunk Facebook page daily. At the time he
frequented the Linejunk Facebook page, it was typical for a Linejunk administrator to post
pictures and conversation starters on a daily basis. On December 1, 2014, at 8:53 p.m., a
Linejunk Facebook page administrator posted a question to the Linejunk Facebook community 20
or followers on behalf of someone who claimed to be a lineman with 36 years of experience.
That lineman stated that he had been asked to be part of a safety team and he wanted to know
why so many accidents were occurring. (GC Exh. 5; Tr. 45–46; 53.) The posted safety inquiry
states:
25
Linejunk
Dec 1 at 8:53 pm
i have a question to ask…First, i have been a lineman for 36 years, the last four
years i have been a line foreman, so i do know line work, i have been ask to be a
part of a safety team, to try and figure out why there are so many accidents. I 30
have been following Time for a Change like many of you have, were all reading
about all the accidents, why are they happening????so here is my question to you.
How do we fix this, what do we need to do to prevent accidents? i know a few
will say that the company pushs us, well that may be, but if you think its unsafe,
then why did you do it, so I don’t want to get in any pissing match with anyone, i35
would just like to know your ideas on how we can stop all the accidents, is it lack
of training, is it inexperience ect. Your thoughts will be appreciated….(D) (GC
Exh. 5) (spelling, punctuation and emphasis in the original)
The record reveals that the bolded text “Time for a Change” is another Facebook page 40
that existed as of December 2014, which like Linejunk, focused on safety concerns in the
lineman and electrical field. The Linejunk administrator set up a link so that if a viewer clicked
on “Time for a Change” in the posting, it would bring the viewer to the “Time for a Change”
Facebook page. (Tr. 51.) At some point between December 2014 and the date of the hearing in
this matter, the exact date of which is unknown, “Time for a Change” changed its name to 45
“Linemen Take a Stand for Safety.” (Tr. 51; GC Exh. 9.) Even though its name changed, the
description of the Facebook page still stated: “With the overwhelming amount of deaths in the
JD–96–16
9
Lineman industry it is time to make a change.” (GC Exh. 9.) Thus, both the “Linejunk” and
“Time for a Change” (and subsequently “Linemen Take a Stand for Safety”) Facebook pages
provided safety information and a forum for conversations about safety for linemen. (Tr. 52; GC
Exhs 7 and 9.) At the time of the hearing in this matter, the “Linemen Take a Stand for Safety”
Facebook page had 5242 people who “liked” it. (GC Exh. 9.) 5
The Linejunk Facebook administrator’s question posed a conversation starter regarding
safety, and it had approximately 110 comments that were posted by people in response, and it
had 77 “likes.” (Tr. 60; GC Exh. 14.) One of those people was Svoboda, who posted a response
on December 2, 2014, at 6:30 p.m., approximately 22 hours after the Linejunk administrator 10
posted the original question. Svoboda credibly testified that he read at least some of the
comments to the administrator’s original question before he posted his comment. (Tr. 56–59, 68,
84.) He described the comments he read as “trending” towards crew size and the amount of
workers in the area, which related to “the safety of the linemen that are in the air and fellow crew
members.” (Tr. 72–73) Svoboda testified that he posted his comment in two parts because he 15
exceeded the character limit for a single post. Svoboda’s posted response with the exact spelling
and punctuation (or lack of punctuation) on the Linejunk Facebook page stated as follows:
I agree with most comments been in the trade 11 years started with iou and got
my ticket was trained by the “old” guys then moved back home to a coop and 20
what a goat bang it has been I will never forget the guys that brought me up they
were the real deal the brotherhood that was compared to me at 31 being the oldest
jl of our 6 man crew and I use 6 man crew loosely most it’s 3 out doing all work a
jl or two and apprentice sometimes lead man one man In the air all the time I have
brought everyone through there apprenticeship except my lead lineman who’s 3 25
years younger I was In The Air all the time look down not a one would be looking
up not even apprentice then I would get lip back when I would talk about it told
management all the time these new guys need time in the air I can count on my
damn hand how many times I have seen them do hot work. Again brought it up
they agree nothing gets done biggest part now days is lack of experience one man 30
in the air it all drove me out I got sick of fighting the guys took a staking job. Just
last month.
Lack of discipline, and having to care about others feelings Is why people get hurt
I used probably the least amount of cover and like others have said it teaches you 35
to keep your shit in a row and pay attention. Not to just go slopping around.
That’s my 2 cents. every accident I have heard of is o e man in the air and maybe
one on the ground on maybe they are a few spans down stupid. (GC Exhs. 5 and
14)8
40
There were posts to the administrator’s original question both before and after Svoboda’s
post. There were also posted comments in response to those 100 responses, and some of those

8 GC Exh. 5 is an image of the Linejunk Facebook administrator’s safety inquiry post and Svoboda’s
posted response. GC Exh. 14 (a)-(q) is a printout of that same post on page (e), and all of the posted
comments in response.
JD–96–16
10
comments were posted by the Linjunk administrator on the Facebook page. (GC Exh. 14.)9
Svoboda testified that his post was the first and last time he posted a comment on the Linejunk
Facebook page. In addition, Svoboda testified that after his post, he stopped using Facebook.
(Tr. 50.) He also testified that after his discharge he called Linejunk and “let them know that
because of a post that was on their page, there was a termination,” and the Linejunk5
administrator then removed the entire conversation from its Facebook page. (Tr. 72.)
While portions of Svoboda’s posted comments are somewhat cryptic in nature, Svoboda
clarified and explained at the hearing in this matter what some of the phrases meant. In this
regard, he testified that the phrase “started with iou” meant he started working at an “investor 10
owned utility” named Aquila in Kansas, and “got my ticket” meant the International Brotherhood
of Electrical Workers qualified him as a journeyman lineman while working there. (Tr. 118–
119.) According to Svoboda, “the old guys” referred to the older generation of linemen with 30
or more years of experience, who trained him in his apprenticeship program in Kansas. (Tr. 53;
120.) The “coop” he “moved back home to” referred to the Respondent, and the “goat bang” 15
was a term for “uncertainty of issues” as he believed some of Respondent’s practices did not
“jive together” all the time and instead were “kind of a mess.” (Tr. 54; 120.) The phrase “Me at
31 being the oldest jl” referred to the fact that at 31 years old, he was the oldest journeyman
lineman on the crew. (Tr. 120–121.)
20
Svoboda’s comments also referenced safety issues or concerns. He credibly testified that
the phrase “6 man crew loosely” referred to the fact that most of the time the six man crew was
split into two 3 man crews, and he believed the 6 man crews were safer than the 3 man crews.
(Tr. 121.) Svoboda testified that when “one man was in the air” it was safer to have more of the
crew on the ground serving as “eyes” to “make sure that you are in the right place.” (Tr. 55; 25
121.) The comment that he “told management all the time these guys need time in the air I can
count on my damn hand how many times I have seen them do hot work” meant he believed that
for practices to be safe, the apprentice linemen “needed to be in the hot zone getting hot work
with another journeyman lineman” in the lift bucket or basket. (Tr. 122.) Svoboda testified that
he did not believe the apprentice linemen were getting enough experience in the air in the 30
buckets or with “hot work” (around energized conductors where linemen are at risk of contact
with the electrical current) before they were being certified as journeymen linemen. (Tr. 54; 122–
128.) He testified that he believed the apprentice linemen needed “more time in the air” to get
experience so that when they became journeymen linemen, “you could fee[l] comfortable having
them do the work with not having to constantly be looking over their back and telling them what 35
to do.” (Tr. 123–124.) Svoboda credibly testified that by these comments he was advocating for
better safety, explaining:
Because they need more time. That’s the whole point of the apprenticeship
program is to have them be able to have that time to get involved. That’s why 40

9 With regard to GC Exh. 14 (a)-(q), the parties stipulated that: (1) the original post was made by the
administrator of Linejunk; (2) Svoboda made a response to the original post that was in two parts or
paragraphs (on page (a) of the exhibit) that is displayed in backward order—the larger paragraph of
Svoboda’s response was actually typed first and was followed by the smaller paragraph; (3) there were
posts made in response to the administrator’s original question, both prior to and after Svoboda made his
post; and (4) the posts in GC Exh. 14 (a)-(q) are representative of the posts that appeared in that chain
responsive to the original post by the Linejunk Facebook page administrator. (Tr. 158–160.)
JD–96–16
11
you’re with another journeyman lineman in the air. You aren’t a journeyman
lineman just because [a] paper says you’re a journeyman lineman. You’re a
journeyman lineman because you came through the ranks of an apprenticeship
and you understand how to conduct yourself in situations that can occur. (Tr. 126-
127)5
Svoboda testified that in his apprenticeship in Kansas he “went through a 2,000-hour program”
with “1,500 hours of hot time,” which he believed provided more safety than the Respondent’s
apprenticeship program because the Respondent’s program did not have a “hot hour basis.”10 (Tr.
127–128.) 10
Svoboda also testified that his statement “got sick of fighting with the guys” referenced
his work-related disagreements with some of the crew between the way Phil Elgersma ran the
crew when he was in charge, as compared to the way he (Svoboda) ran the crew when he was in
charge. (Tr. 128–129.). His statement “Just last month” is connected with “took a staking job,” 15
which refers to the fact that in October 2014 he started working in the staking position which is a
non-bargaining unit position, and then only worked occasionally with the line crew. (Tr. 146;
152.) In addition, he testified that the phrase “lack of discipline” referred to the lack of self-
discipline by the apprentices, and “having to care about others’ feelings” referenced that “you
couldn’t speak up and tell [the other crew members] that, hey, look, you’re not doing it right.” 20
(Tr. 147) Svoboda’s post on Linejunk did not mention the name of his employer, nor did it
identify his co-workers.
7. Svoboda’s posted comments in response to the Linejunk Facebook administrator’s
question regarding safety were similar in nature to the other posted comments in that 25
conversation and to other discussions about lineman safety that occur in the media
Svoboda’s comments in his post were not unlike many of the other posted comments in
that conversation. Many of the over 100 other posted comments in that Linejunk conversation
similarly addressed safety concerns like Svoboda’s, such as issues pertaining to linemen crew 30
size, the number of workers in an area, lineman training, and other matters concerning “the
safety of linemen in the air and fellow crew members.” (GC Exh. 14; Tr. 72–73.) Thus, the
Facebook conversation was “trending” in the same direction as his post with regard to crew size
and the amount of workers in an area. (Tr. 72.) For example, one posted comment by an
individual to the administrator’s question stated that “Going to a three man crew is total bullshit 35
in my eyes. You always need a set of eyes on the ground doing nothing but watching his two
brothers in the air.” (GC Exh. 14(e).)
Svoboda’s comments were not only similar in nature to the other posts in response to the
conversation starter on safety, they were similar in nature to other comments posted on other 40
websites and mentioned in other media articles dealing with lineman safety and the electrical
industry. (GC Exh. 13.) The record contains a sampling of articles both in print and on the
internet which establish that the electrical lineman industry is inherently dangerous and that there
are safety concerns, and conversations and discussions about those safety concerns. (GC Exh. 13;

10 Svoboda described a “hot-hour basis” as “how many hot hours you needed to have before you were
a qualified journeyman lineman.” (Tr. 128.)
JD–96–16
12
Tr. 215–223.) In addition, Respondent CEO Korver testified that he was aware that discussions
about lineman safety occur in the media, whether it was on the internet, in newspapers, or in
magazines. (Tr. 298.) He also testified that the Respondent is always interested in improving
workplace safety.
5
Svoboda’s comments pertaining to safety were also nothing new to management or his
co-workers. Svoboda had previously raised and shared some of the same safety concerns
mentioned in his Linejunk Facebook post with his managers and co-workers throughout his
employment with the Respondent. (Tr. 55–56.) He specifically talked about some of the
accidents where one lineman was in the air and either none or just a few were on the ground. (Tr. 10
55.) He specifically brought up such safety concerns in daily work conversations and after the
Respondent’s safety meetings and he discussed such concerns with Supervisor Alons and co-
worker Luke Lathrop. (Tr. 56.) In addition, several of his co-workers he was friends with on
Facebook “liked” the Linejunk Facebook page. (Tr. 56–57.) Svoboda testified that based on the
conversations he had with his co-workers about safety, he believed his co-workers supported him 15
on those safety issues. (Tr. 56.)
8. On December 3, 2014, Svoboda’s co-workers provided the Respondent with a printed
copy of his Linejunk Facebook post
20
The day after Svoboda posted his response to the Linejunk safety conversation starter,
Phil Elgersma, the crew’s lead lineman, delivered a printed copy of the Linejunk Facebook
conversation to Alons before the crews were dispatched for work that morning. Alons testified
that Elgersma told him the crew in District 1 had something they wanted to discuss with him and
he handed him the printed Facebook conversation which included Svoboda’s post. According to 25
Alons, Elgersma was accompanied by the crew members, consisting of: Luke Lathrop, Al
Jungers, Dustin Koele, and Brandon Bonnema. Elgersma told him that the crew had seen the
Facebook post the night before and they talked among themselves, and if he did not have work
for Svoboda, they asked that Alons not send Svoboda with the crew anymore because they
“really want no part of working with him.” (Tr. 171.) Elgersma also conveyed that the crew, 30
referring to the post, “had the impression that [Svoboda] threw them under the bus.” (Tr. 171.)
Alons testified that Elgersma appeared upset and told him that Svoboda’s post “put the Orange
City crew and the whole organization in a bad light, and they took it from that . . . he was
making the comments against all of them.” (Tr. 178.)
35
Alons read the Linejunk Facebook post after Elgersma gave him the printed copy, and he
then gave the printed copy to Haak, who also read it. (Tr. 172.) On Friday afternoon, December
5, 2014, Alons called Korver who was out of the office and told him about Svoboda’s Facebook
posting. In that call they discussed the Facebook post and how the crew brought it to Alon’s
attention. (Tr. 173.) Alons testified that he and Korver also discussed and referred “all the past 40
warnings, both written and verbal,” and that Svoboda “should have been aware that he was on
his last, final warning.” (Tr. 173–174.) Alons testified that at that time, they made the decision
to terminate Svoboda. (Tr. 174.)
Elgersma acknowledged that he informed the Respondent of Svoboda’s Facebook post, 45
but some of his testimony contradicted that of Alons. While Alons testified that when Elgersma
informed him about the Facebook post the crew was with him, Elgersma testified that in that
JD–96–16
13
meeting, he was “alone with Doug [Alons] in the office.” (Tr. 325–326.) In addition, Elgersma
did not testify that he said anything to Alons about Svoboda throwing them “under the bus.” (Tr.
326.) Elgersma instead testified that he “just said [that he] got calls from the other guys last
night, and [he] said if this is how [Svoboda] feels about us, you know, being how our job entails
safety and respect . . . and we watch out for each other . . . we don’t want to work with him 5
anymore.” (Tr. 326.) Elgersma testimony revealed that his desire not to work with Svoboda was
not a recent feeling because for “several months” he and the crew members did not want to work
with Svoboda. (Tr. 324.) He testified that sometimes the crew members would flip a coin to
determine who would have to work with Svoboda. (Tr. 324.) However, the record establishes
that since Svoboda took the staking job, he worked much less with the crew than he had before. 10
In that regard, Elgersma testified that while in the staking job, Svoboda only worked
“occasionally” with the crew, depending on the job. (Tr. 325.) He also testified that the crew “. .
. worked with him a lot less then. . . .” (Tr. 325.)
Dustin Koele, one of the Orange City District 1 crew members, testified that he saw 15
Svoboda’s Linejunk Facebook post. Koele understood that the subject matter of the post was
about safety, but he disagreed with Svoboda’s “characterization of safety practices.” (Tr. 349;
355–356.) In particular, he testified that “from a safety perspective” he disagreed with
Svoboda’s statement that “using less cover-up” was safer. (Tr. 349.) In addition, with regard to
Svoboda’s comment about “the ground man not looking up at the guy in the air,” he testified 20
that:
It’s kind of the thing we talk about right away when new guys get here, that that’s
kind of their primary job, as well as all of us that have been here. But, … that’s
one of their primary jobs … to pay attention to the guy in the air. If something 25
looks unsafe, you say it, … whether it is or not, [you] bring it to our attention and
go from there…. (Tr. 349)
Koele testified that Svoboda was not part of the line crew because he had the staking job,
but he would sometimes help the line crew when he did not have staking work to do. (Tr. 351.) 30
He specifically recalled only working with Svoboda one time after he took the staking tech
position. (Tr. 353.) Nevertheless, Koele testified that he was present with the line crew when
Elgersma provided Alons with Svoboda’s post, and that after reading the post, he preferred not to
work with Svoboda because he “ran all our names through the mud.” (Tr. 350.) Koele, over the
3 1/2 years that he worked with Svoboda, requested “multiple times” not to work with him. (Tr. 35
354.) In fact, he testified that on approximately 15 occasions he indicated to his managers that
he did not want to work with Svoboda. (Tr. 353.) Thus, Koele testified that his requests not to
work with Svoboda occurred “long before” the Linejunk Facebook post, and such requests had
nothing to do with the Facebook post. (Tr. 355.)
40
Svoboda testified that he had gotten along well with his co-workers on the line crew, and
had on occasion gone out for beer with them, but after he posted his comments on the Linejunk
Facebook page, “their demeanor towards him changed,” and his co-workers appeared angry with
him, in particular Koele and Lathrop. (Tr. 73–74; 143.) He testified that, at that time he did not
know if his co-workers saw his post, but he suspected they did because they were “short” with 45
him and appeared to not want to talk to him. (Tr. 74.) He testified, however, that a few days
JD–96–16
14
later, while outside of work, he asked co-worker Alex Jungers if he saw the Linejunk Facebook
post, and Jungers confirmed that he had seen it. (Tr. 74.)
9. The Respondent discharged Svoboda on December 8, 2014, approximately 1 week after
he posted his comments on the Linejunk Facebook page5
After Alons read Svoboda’s Facebook post on Wednesday, December 3, 2014, he talked
to Korver about it on Friday, December 5. Alons testified that he waited several days to talk to
Korver because Korver was out of town and Alons believed he would return that week. On
Friday, after Korver failed to return to the office, Alons contacted him by phone and discussed 10
“the issue” of Svoboda’s “Facebook post.” (Tr. 173.) According to Alons testimony, they came
to the conclusion that it was time for Svoboda’s termination. (Tr. 180.) Alons testified that the
decision was based on “a review of all the warnings that he’s had over the years and attitude
issues over the years….[a]nd it doesn’t appear the pattern has changed…[s]o we decided to
terminate.” (Tr. 180–181.) Alons also testified that the decision was based on the “how the guys 15
reacted to [Svoboda’s post] and that they didn’t want to work together anymore.” (Tr. 181.)
On Monday, December 8, 2014, Alons and Haak met with Svoboda in the morning and
held him over until after the crews were dispatched. According to Svoboda, in that meeting,
Alons told him “it had been brought to their attention that [he] still had some harsh feelings with 20
the cooperative that [he had] aired them on Facebook, and they had policies in effect,” and then
Alons asked for his keys. (Tr. 77.) Alons simply testified that he informed Svoboda that his
Facebook post had been brought to his attention, that it was “all negative,” and that he made the
post in a forum he knew his coworkers were on. (Tr. 175.)
25
Alons testified that after Svoboda’s discharge, there was no written notation made of his
discharge meeting. (Tr. 181.) However, that testimony was contradicted by Respondent’s own
evidence of a memorandum dated December 11, 2014, entitled “Termination of Employment of
Dave Svoboda.” (R. Exh. 1; Tr. 182.) That document was drafted by Korver and it was signed
by Korver, Haak, and Alons. In the memo, Korver stated:30
Doug [Alons] reported that we had experienced another issue with Dave Svoboda.
Several of the line crew had made Doug aware of a social media post by Dave one
night this week and they were quite upset about it. Doug said that the post was
negative to the Cooperative and to some of the line crew. He was very concerned 35
about this and not being able to trust Dave in his new position as GPS and Staking
Technician. Doug also mentioned that one of the Lead Lineman (sic) had again
told him that he did not want to have Dave with the crew anymore.
Based on our previous warnings to Dave, I indicated to Doug that he really gave 40
us no choice – we would need to terminate his employment. (He had received
several previous verbal warnings about his bad attitude and lack of cooperation
with other employees and two written “final warnings” – one in 2012 and one last
December.) (R. Exh. 1)
45
The memo further stated that they agreed Alons and Haak would meet with Svoboda on
Monday morning and “terminate his employment immediately for his continued bad attitude,
JD–96–16
15
negative comments toward our organization and his fellow employees, and the concerns that
have been raised of our linemen not wanting to work with him.” (R. Exh. 1.) The memo also
stated that Alons and Haak met with Svoboda on December 8 and “[t]hey mentioned that it had
come to their attention that Dave had made a negative post on social media and this was another
demonstration of Dave’s bad attitude toward the Cooperative and his fellow employees and it 5
causes conflict and mistrust.” (R. Exh. 1.)
As Alons escorted Svoboda to his locker to remove his belongings, Svoboda asked Alons
if he saw his Facebook post, and Alons said that he had seen it. Finally, Svoboda ask him if his
Facebook post included any new information that he (Svoboda) had not already shared with the 10
Respondent, and Alons stated that it had not. (Tr. 78.)
10. The Respondent’s asserted reasons for discharging Svoboda
Svoboda’s credible testimony revealed that Alons informed him that he had been 15
discharged on the basis of his Linejunk Facebook post. He testified that when being informed of
his discharge, Alons told him it was brought to his attention that he “still had some harsh feelings
with the cooperative and that [he’d] aired them on Facebook, and they had policies in effect.
Alons did not deny those statements to Svoboda, and despite the fact that he was somewhat
evasive when being questioned on that issue, he subsequently acknowledged that when he 20
discharged Svoboda, he told Svoboda his Facebook post was brought to his attention, it was all
negative, and he had made the post in a forum he knew his co-workers were on. (Tr. 175.)
Haak’s testimony similarly revealed that Svoboda was informed that he was discharged
because of his Facebook post. In that connection, Haak testified that his sworn statement in his 25
affidavit provided during the investigation of this case, was true and accurate, which stated in
relevant part:
Alons told Svoboda about the Facebook Post that had been brought to our
attention and that we had read it…. I think it was obvious to the crew that 30
Svoboda was referring to the employer in his Facebook post, which was all
negative. He also made a post in a forum that he knew his co-workers were on.
This was relayed to Svoboda during the termination by Alons. (Tr. 205-207)
In addition, as mentioned above, Korver’s memorandum pertaining to his conversation 35
with Alons on December 5 and the termination meeting Alons and Haak had with Svoboda on
December 8, reflects that Svoboda was informed that his discharge was based on his Facebook
post. In the memo, Korver stated that Alons was made aware of “a social media post by Dave”
that was “negative to the Cooperative and to some of the line crew.” (R. Exh. 1.) The memo
further stated that Alons and Haak met with Svoboda on December 8 and “mentioned that it had 40
come to their attention that Dave had made a negative post on social media and this was another
demonstration of Dave’s bad attitude toward the Cooperative and his fellow employees and it
causes conflict and mistrust.” (R. Exh. 1.)
Kover testified however, that his decision to discharge Svoboda was not based on the fact 45
that he made the Facebook post. (Tr. 285.) Instead, he testified that he had to discharge Svoboda
because he “couldn’t accept the risk safety-wise and with the inefficiency … it was going to cost
JD–96–16
16
… our organization.” (Tr. 285.) He went on to testify that continuing to employ Svobada “would
adversely impact [Respondent’s] work environment if [it] kept him employed.” (Tr. 285–286.)
When asked to elaborate on that statement, Korver testified:
Crew members not wanting to work with him, so we would have to be changing 5
work schedules that was going to affect our efficiencies, but the big thing was
what that could do safety-wise when you got guys that don’t want to work with
somebody, there’s not a trust there. There’s conflict. I can’t accept that
responsibility as a manager to have – to not do something about that and then
have something occur and I didn’t do something about it. (Tr. 286.)10
Korver’s testimony that he had to discharge Svoboda because he would have to change
all the linemen’s work schedules and it would affect safety differs from the reasons for discharge
set forth in his memorandum and the reasons conveyed to Svoboda at the time of his discharge.
Those reasons for discharging Svoboda (because of changing work schedules and safety 15
concerns) were also items that Korver failed to mention as reasons for Svoboda’s discharge in
his sworn affidavit provided to the NLRB Regional Office during its investigation of the charge
in this case. (Tr. 294–297.)
11. The credibility determinations20
While the operative facts of this case are essentially undisputed and do not require
determinations with regard to credibility, the particular point of Korver’s testimony regarding the
reason Svoboda was discharged warrants evaluation as it conflicts with the record and it is relied
on by the Respondent as a purported independent basis for Svoboda’s discharge. Credibility 25
determinations may rely on a variety of factors, including the context of the witness’ testimony,
the witness’ demeanor, the weight of the evidence, established or admitted facts, reasonable
inferences that may be drawn from the record as a whole, and the inherent probabilities of the
allegations. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335
NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), 30
enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all or nothing
propositions. Indeed, nothing is more common than for a judge to believe some, but not all, of
the testimony of a witness. Daikichi Sushi, 335 NLRB at 622; Jerry Ryce Builders, 352 NLRB
1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950),
revd. on other grounds 340 U.S. 474 (1951). 35
My observation during the trial was that Svoboda appeared sincere and honest in his
demeanor, and he testified in a clear, convincing, and straightforward manner. His testimony
that the Respondent discharged him because of his Facebook post was not only credible, it was
corroborated by the testimony of Respondent witnesses Alons and Haak, and by Korver’s 40
memorandum stating that Svoboda was told he was discharged for his Facebook post that was
negative to the company. Korver, on the other hand, testified in a less convincing manner, and in
particular, he presented testimony that was at times guarded and defensive. I specifically do not
credit Korver’s testimony that having to change work schedules and safety concerns were bases
for the discharge. As mentioned above, that testimony was not supported by the record, and it 45
was contradicted by the testimonies of Alons and Haak, and his own memo documenting
Svoboda’s discharge. Critically, Korver also failed to present his asserted reasons of changing
JD–96–16
17
schedules and safety concerns in his affidavit to the Region, which further undermines the
veracity of his assertions. Thus, in instances where the testimonies of Respondent’s witnesses,
and in particular that of Korver, differ from that of Svoboda’s, I credit Svoboda’s testimony.
B. The Contentions of the Parties5
The General Counsel argues that the Respondent’s discharge of Svoboda violated the Act
essentially under three theories: (1) he was engaged in protected concerted activity in posting his
comments in response to the safety conversation starter on the Linejunk Facebook page; (2) that
discussions about safety in the lineman industry are “inherently concerted;” and (3) even 10
assuming Svoboda was not engaged in concerted activity, he was discharged pursuant to
overbroad rules concerning conduct (Policy Nos. C-6 and C-9).
The Respondent, on the other hand, argues that Svoboda was not discharged because of
his post on the Linejunk Facebook page, but instead “because of his continued inability to get 15
along with his coworkers,” which was not protected by the Act.11 (R. Br. p. 13.) Respondent
further contends that even if Svoboda was discharged for his Facebook post, he was not engaged
in concerted activity under the traditional Meyers test. Instead, the Respondent argues that the
post was “nothing more than unprotected griping, unrelated to group activity,” and his co-
workers who testified at the hearing in this matter “stated that they disagreed with the content of 20
his posts.” (R. Br. pp. 13–15.) The Respondent also contends that the Linejunk Facebook post
was not “inherently” concerted activity because the Board has only extended that theory to
conversations about wages and job security. (R. Br. p. 20.) Finally, the Respondent argues that
Conduct Policies C-6 and C-9 are not overly broad, and even if they were, Svoboda’s
termination was lawful because he was discharged for his “habitual inability to get along with his 25
coworkers.” (R. Br. pp. 16, 19.)
C. Analysis
1. Svoboda engaged in concerted activity for the purpose of mutual aid or protection, and 30
the Respondent discharged him because of that activity, in violation of Section 8(a)(1) of
the Act.
a. The legal precedent
35
Section 8(a)(1) of the National Labor Relations Act makes it an unfair labor practice for
an employer “to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in Section 7 [of the Act].” Section 7, the cornerstone of the Act, provides that
“[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own choosing, and to engage in other 40
concerted activities for the purpose of collective bargaining or other mutual aid or protection. . .
.” Employees thus have a statutory right under Section 7 to act together “to improve terms and

11 In that connection, the Respondent asserts that Svoboda was discharged “because he had been
warned multiple times about his inability to work with his team, and immediately after his posts every
one of his immediate coworkers told Respondent’s management that they would no longer work with
him” and thus, even if the posts were protected his termination was not unlawful. (R. Br. p. 23.)
JD–96–16
18
conditions of employment or otherwise improve their lot as employees.” Valley Hospital
Medical Center, 351 NLRB 1250, 1252 (2007), end. 358 Fed. Appx. 783 (9th Cir. 2009). The
Board has held that such a right includes employees’ use of “social media to communicate with
each other and with the public for that purpose.” Three D, LLC d/b/a Triple Play Sports Bar &
Grille, 361 NLRB No. 31 (2014), affirmed, 629 Fed. Appx. 33 (2d Cir. 2015). The Act 5
accordingly prohibits employers from discharging employees for exercising their organization
and collective-bargaining rights, including their right to engage in concerted activities for the
purpose of mutual aid or protection. See MCPC Inc. v. NLRB, 813 F.3d 475, 479 (3rd Cir. 2016).
The Board has held that an employee’s conduct must be both “concerted” and engaged in 10
for the purpose of “mutual aid or protection” for it to be protected under Section 7 of the Act.
Fresh & Easy Neighborhood Market, 361 NLRB No. 12, slip op. at 3 (2014). The Supreme
Court, however, has held that Congress did not intend to limit the protection of Section 7 of the
Act to situations “in which an employee’s activity and that of his fellow employees combine
with one another in any particular way.” NLRB v. City Disposal Systems, 465 U.S. 822, 835 15
(1984). The Supreme Court has recognized that the concept of “mutual aid or protection”
concerns “…the goal of concerted activity; chiefly, whether the employee or employees involved
are seeking to ‘improve terms and conditions of employment or otherwise improve their lot as
employees.’” Fresh & Easy Neighborhood Market, supra at slip op. 3, citing Eastex, supra at
565. The “concertedness” and “mutual aid or protection” elements under Section 7 are analyzed 20
under an objective standard, whereby motive for taking the action is not relevant to whether it
was concerted, nor is motive relevant to whether it was for “mutual aid or protection.” Fresh &
Easy Neighborhood Market, supra, slip op. at 3. The analysis instead focuses on “…whether
there is a link between the activity and matters concerning the workplace or employees’ interests
as employees.” (Id.) 25
b. Svoboda’s post on Facebook was for the purpose of mutual aid or protection.
In this case, it is undisputed that Svoboda was involved in a Facebook discussion seeking
input on how accidents in the lineman industry could be stopped or prevented (i.e. “how we can 30
stop all the accidents” in lineman work), and the content of his post in reply to that inquiry
clearly concerned the protected topic of lineman safety and accident prevention. When Svoboda
posted his comments on the Linejunk Facebook page, he was addressing his workplace health
and safety concerns. His comments, without naming the Respondent or its managers, were
critical of some of Respondent’s safety practices and safety training, and therefore directly 35
concerned improving his and his co-workers’ terms and conditions of employment. See Daniel
Construction Co., 277 NLRB 795 (1985) (employees’ work stoppage found to be “plainly
protected” where it concerned “uncomfortable, potentially health-threatening working
conditions”). Any contention by the Respondent that Svoboda’s Facebook post was merely
unprotected “griping,” and somehow did not involve workplace safety or health concerns, is 40
simply not supported by the record. In fact, Koele, one of the lineman crew members called by
Respondent to testify, acknowledged that Svoboda’s Facebook post concerned workplace safety,
and that it contained Svoboda’s “characterization of safety practices.” (Tr. 349; 355–356.)
The record also establishes that Svoboda’s Facebook comments were nothing new to his 45
managers, and in fact, his comments were a continuation of safety concerns he had previously
shared with some of his supervisors and coworkers. In his Facebook post, Svoboda recounts
JD–96–16
19
how he brought certain safety issues to management’s attention to no avail—such as the use of 3-
man crews instead of 6-man crews; the fact that apprentice linemen needed more time in the air
(in the bucket) and needed training to be aware of what the linemen were doing in the air, and his
belief that many accidents occur when there are an insufficient number of linemen on the ground
to help the lineman in the bucket. It is undisputed that prior to his Facebook post, Svoboda had 5
specifically talked about accidents involving one lineman in the air and either none or just a few
stationed on the ground. (Tr. 55–56.) He also specifically raised safety concerns in daily work
conversations and after the Respondent’s safety meetings. (Tr. 55.) Svoboda also specifically
discussed those safety concerns with Alons, as evinced by the fact that, when Svoboda was being
escorted to his locker after his discharge, Alons acknowledged that Svoboda’s Facebook post did 10
not include any information which he had not already raised with the Respondent.
Besides commenting on his and his co-workers’ terms and conditions of employment for
the purposes of mutual aid or protection, the record also establishes that Svoboda’s Facebook
comments concerned a discussion regarding the safety of employees of other employers in the 15
industry, and they were aimed at improving industry-wide safety for all linemen who viewed the
Facebook post. In Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), the Supreme Court held that
attempts to improve the terms and conditions of employment for other employer’s employees are
within the broader purpose of “mutual aid or protection” under the Act, as well as for the
narrower purposes of “self-organization” and “collective bargaining.” In Eastex, the Court noted 20
that the “employees” who may engage in concerted activities for purposes of “mutual aid or
protection” are defined by Section 2(3) of the Act to “include any employee, and shall not be
limited to employees of a particular employer….” (Id. at 564.) The Court thus held that “[t]his
definition was intended to protect employees when they engage in otherwise proper concerted
activities in support of employees of employers other than their own,” and that the “mutual aid or 25
protection” clause encompasses such activities. (Id.) In that case, the Court determined that the
distribution of a union newsletter by employees to nonworking unit employees in nonworking
areas, encouraging them to write their legislators to oppose incorporation of the state “right-to-
work” statute into a revised state constitution, and criticizing a presidential veto of federal
minimum wage increases and urging readers to vote for labor-friendly political candidates, 30
involved mutual aid or protection. (Id. at 556.) The Court found that the newsletter advocating a
raise in the minimum wage involved mutual aid or protection, even though employees of the
respondent were already paid far above the proposed minimum, based on the “widely recognized
impact that a rise in the minimum wage may have on the level of negotiated wages generally.”
(Id. at 565–567; 569–570.) Thus, in Eastex, the Court held that employees are protected by the 35
Act when they seek to improve their terms and conditions of employment or improve their lot as
employees “through channels outside the immediate employee-employer relationship.”
In this case, Svoboda’s efforts to address workplace health and safety concerns and to
improve the terms and conditions of his employment, as well as that of all employees in the 40
industry, clearly concerned matters of “mutual aid or protection” of the Respondent’s employees
and of employees generally. Dreis & Krump Mfg., 221 NLRB 309, 314 (1975) (employees’
complaints protesting supervisory handling of safety and training issues fell within the scope of
the “mutual aid or protection” clause). Accordingly, Svoboda’s Facebook post constituted
protected activity under the Act. Eastex, supra; Reliant Energy, LLC, 357 NLRB 2098, 2100 fn. 45
19 (2011); See Yellow Cab, Inc., 210 NLRB 568, 569 (1974) (employee “seeking to enlist the aid
of his fellow employees to support employees of other employers who were on strike and to
JD–96–16
20
oppose an alleged antilabor combination...[was]…a protected concerted activity for mutual aid
and protection under Section 7.”) See also, Washington State Service Employees State Council
No. 18 and Local 6, Service Employees Union, 188 NLRB 957, 958–959 (1971).
c. Svoboda’s Facebook post constituted concerted activity5
Besides constituting protected activity, there is a question of whether Svoboda was
engaged in concerted activity when making his Facebook post. While the Respondent contends
that Svoboda was not discharged because of his post on the Linejunk Facebook page, but instead
because of “his continued inability to get along with his coworkers,” it nevertheless argues that 10
even if he was discharged for his Facebook post, he was not “trying to initiate, induce or prepare
for any group action…and his posts were not protected concerted activity under the traditional
Meyers test. (R. Br. pp. 13–15.) In support of its position, the Respondent asserts that the
Facebook post was “unrelated to group activity,” and that Svoboda’s co-workers who testified at
the hearing “disagreed with the content of his posts.” (R. Br. pp. 13–15.) For the reasons stated 15
below, I find that the Respondent’s arguments lack merit, and that Svoboda was engaged in
protected concerted activity.
As mentioned above, the Board has held that an employee’s conduct must be both
“concerted” and engaged in for the purpose of “mutual aid or protection” for it to be protected 20
under Section 7 of the Act. Fresh & Easy Neighborhood Market, supra, slip op. at 3. The Board
defined concerted activity in Meyers Industries (Meyers I), 268 NLRB 493 (1984), remanded sub
nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), as activity
“engaged in with or on the authority of other employees, and not solely by and on behalf of the
employee himself.” The Board clarified that definition of concerted activity in Meyers II, 281 25
NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied
487 U.S. 1205 (1988), to include cases “where individual employees seek to initiate or to induce
or to prepare for group action, as well as individual employees bringing truly group complaints
to the attention of management.” (Id. at 887.)
30
In this case, Svoboda’s albeit single and individual action in his Facebook post sought to
bring to the attention of all those who viewed the Facebook question of what can be done to
prevent accidents, his concerns with regard to health and safety in his workplace and in the
industry in general. He set forth is concerns, without identifying the Respondent or its managers,
in a group discussion viewed by some of his co-workers whom he knew were members of the 35
Linejunk community. In fact, Svoboda testified that Facebook notified him that some of his co-
workers followed the Linejunk page. Furthermore, Svoboda’s comments in his post were the
same as those he had previously raised with his managers and co-workers. I find that since
Svoboda raised his workplace safety concerns in a group forum that included some of his co-
workers, his comments were intended, at least in part, “to initiate or to induce or to prepare for 40
group action” in support of his position on those safety issues that he previously raised with
management.
Even if Svoboda lacked a concrete plan for subsequent group action, his Facebook post
nevertheless constituted concerted activity. The Board held in Fresh & Easy Neighborhood 45
Market, supra, at slip op. 3, the requirement that activity, to be concerted, must be engaged in
JD–96–16
21
with the object of initiating or inducing group action, “does not disqualify merely preliminary
discussion from protection under Section 7.” In that regard, the Board noted that:
[I]nasmuch as almost any concerted activity for mutual aid or protection has to
start with some kind of communication between individuals, it would come very 5
near to nullifying the rights of organization and collective bargaining guaranteed
by Section 7 of the Act if such communications are denied protection because of
lack of fruition. Fresh & Easy Neighborhood Market, supra, at slip op. 3, quoting
Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964)
10
In addition, the Board has held that “the activity of a single employee in enlisting the support of
his fellow employees for their mutual aid and protection is as much ‘concerted activity’ as is
ordinary group action.” Fresh & Easy Neighborhood Market, supra at slip op. 3; Whittaker
Corp., 289 NLRB 933 (1988), quoting Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357,
1365 (4th Cir. 1969) 15
The fact that some of Svoboda’s co-workers testified at the hearing that they disagreed
with the content of his Facebook post, and subsequently reported his comments to management,
does not diminish or negate the concerted nature of Svoboda’s comments. What Svoboda’s
fellow employees may have thought about his motives has little bearing on whether his activity 20
was concerted. Circle K Corp., 305 NLRB 932, 933 (1991). Under Board precedent,
concertedness “…is not dependent on a shared objective or on the agreement of one’s coworkers
with what is proposed.” Fresh & Easy Neighborhood Market, supra at slip op. 3; see e.g., El
Gran Combo, 284 NLRB 1115, 1117 (1987), enfd. 853 F.2d 996 (1st Cir. 1988); and Meyers II,
281 NLRB at 887. The Board has held that it is “…well established that an employee may act 25
partly from selfish motivations and still be engaged in concerted activity, even if [the employee]
is the only immediate beneficiary of the solicitation.” (Id. slip op. 3); See also Circle K Corp.,
supra at 933. Furthermore, the Board has held that “[w]here an employee’s objectives in taking
certain action may be mixed, and one supports a finding of concertedness, [the Board] may not
ignore it in favor of one that does not.” (Id. slip op. 3); Circle K Corp., supra at 934 fn. 9. Based 30
on that legal precedent, Svoboda’s coworkers did not have to agree with him or join his cause in
order for his activity to be concerted, nor did his coworkers have to share an interest in the matter
raised by Svoboda in the post for the activity to be concerted. (Id. at slip op. 4.)
Finally, even though Respondent elicited testimony about some of Svoboda’s allegedly 35
unsafe work practices, thereby suggesting that the content of his Facebook post was
disingenuous or without basis, I find that such evidence is irrelevant and immaterial. As the
Board held in Fresh & Easy Neighborhood Market, supra, an employee “…may act in a
concerted fashion for a variety of reasons—some altruistic, some selfish—but the standard under
the Act is an objective one.” Fresh & Easy Neighborhood Market, supra, at slip op. 3; Circle K 40
Corp., supra at 933. In addition, “…the protected, concerted nature of an employee’s complaint
to management is not dependent on the merit of such a complaint.” (Id. at slip op. 4); See also
Spinoza, Inc., 199 NLRB 525, 525 (1972), enfd. 478 F.2d 1401 (5th Cir. 1973). Thus,
Svoboda’s Facebook comments on safety and the lack of safety training established concerted
activity, regardless of whether his co-workers agreed with his comments, or whether his 45
comments on safety practices and accident prevention actually had merit.
JD–96–16
22
Further evidence that Svoboda’s comments constituted concerted activity can be found in
the fact that Svoboda’s comments were part of, and in response to, a group discussion of
employees on Facebook regarding what could be done to prevent accidents in the lineman
profession.12 The Supreme Court recognized in Eastex, supra, that the concept of “mutual aid or
protection” concerns “…the goal of concerted activity,” which essentially is “…whether the 5
employee or employees involved are seeking to ‘improve terms and conditions of employment or
otherwise improve their lot as employees.’” Eastex, supra at 565; Fresh & Easy Neighborhood
Market, supra at slip op. 3. The Court held that the “employees” who may engage in concerted
activities are not limited to employees of a particular employer, and include employees of
employers other than their own. Eastex, supra at 564. Accordingly, the Board has held that 10
statutory employees employed by different employers may join together to engage in concerted
activities. See Reliant Energy, LLC, supra; Yellow Cab, Inc., supra at 569; See also, Washington
State Service Employees, supra at 958–959 (employee found to have engaged in concerted
activity by attending and participating in a rally with employees of other employers). In this
case, Svoboda’s group Facebook discussion with statutory employees of other employers was 15
aimed at improving the terms and conditions for all employees in the industry, and it clearly
constituted concerted activity. See Triple Play Sports Bar & Grille, 361 NLRB No. 31, slip op.
at 1–2, 5–6 (2014) (employees engaged in protected concerted activity by taking part in a
Facebook discussion about employer’s tax withholding practices).
20
d. Even if Svoboda was not engaged in concerted activity, his discussion about safety in the
lineman industry was “inherently concerted,” and as such was protected.
In addition to arguing that Svoboda’s comments involved group action and thus
traditional concerted activity, the General Counsel contends that his discussion of workplace 25
safety was also protected under the Board’s doctrine of “inherently concerted activity.” The
Respondent, on the other hand, contends that the Facebook post was not “inherently” concerted
activity because the Board has only thus far extended that theory to conversations about wages
and job security. (R. Br. p. 20.) For the reasons set forth below, I find merit to the General
Counsel’s arguments. 30
The Board has historically applied the doctrine of “inherently concerted” activity to wage
discussions, and as such has found them to be protected, regardless of whether they are engaged
in with the express object of inducing group action. Alternative Energy Applications, Inc., 361
NLRB No. 139, slip op. at 4 fn. 10 (2014); Automatic Screw Products Co., 306 NLRB 1072, 35
1072 (1992), enfd. mem. 977 F.2d 582 (6th Cir. 1992); Scientific-Atlanta, Inc., 278 NLRB 622,
624–625 (1986). The rationale for finding wage discussions inherently concerted is that wages
are a “vital term and condition of employment,” the “grist on which concerted activity feeds,”

12 While the record does not identify the individual who posted the question or the other Facebook
users who participated in or viewed the safety discussion, or whether they were statutory employees under
the Act, based on the context of the discussion and the nature of the Linejunk Facebook page, I find it is
reasonable and plausible to infer that at least some of the approximately 77 Facebook users who “liked”
the Linejunk post, the approximately 100 or more individuals who participated in the discussion, or the
tens of thousands who followed the Linejunk Facebook page, were employed as non-supervisory linemen
and statutory employees within the meaning of the Act. In addition, the record established that at least
some of Respondent’s statutory employees participated in or viewed the discussion at issue in this case,
and subsequently presented the post to the Respondent’s managers.
JD–96–16
23
and such discussions are often preliminary to organizing or other action for mutual aid or
protection. Alternative Energy Applications, Inc., supra slip op. 4 fn. 10; Aroostook County
Regional Ophthalmology Center, 317 NLRB 218, 220 (1995) (citations omitted), enf. denied in
part on other grounds 81 F.3d 209, 214 (D.C. Cir. 1996); See also Trayco of S.C. Inc., 297
NLRB 630, 634–635 (1990), enf. denied mem. 927 F.2d 597 (4th Cir. 1991) (found 5
contemplation of group action is not required when employee discussion concerns wages);
Whittaker Corp., 289 NLRB 933, 933 (1988) (with respect to wage discussions, “object of
inducing group action need not be express”).
In Hoodview Vending Co., 362 NLRB No. 81, slip op. at 1, fn. 1 (2015), incorporating by 10
reference 359 NLRB No. 36 (2012), the Board applied the doctrine of “inherently concerted”
activity to discussions about job security. In doing so, the Board held that its rationale for
finding discussions of wages inherently concerted “applies with equal force to conversations
about job security.” Id. In that regard, the Board noted that job security, like wages, is a vital
term and condition of employment and the “grist on which concerted activity feeds.” (Id.); 15
Aroostook County Regional Ophthalmology Center, supra; see also Triana Industries, 245
NLRB 1258, 1258 (1979). In Hoodview Vending Co., while the Board declined to address
“other possible topics of conversation” that might also be found “inherently concerted,” it also
did not rule out the possibility that other topics of conversation might be included in the
“inherently concerted” category. 20
It is undisputed that lineman work is inherently dangerous work which could result in
serious injury, or even death, and therefore workplace health and safety is likely one of the most
important concerns to employees in that profession. The same could be said for all professions,
as health and safety matters regarding unit employees in general have been observed by the 25
Board to be of vital interest to employees, and it has held that “[f]ew matters can be of greater
legitimate concern to individuals in the workplace…than exposure to conditions potentially
threatening their health, well-being, or their very lives.” Detroit Newspaper Agency, 317 NLRB
1071, 1071 (1995) (confirming the relevancy of a union’s request for information addressing
health and safety issues). As workplace health and safety unquestionably has a vital effect on 30
terms and conditions of employment, the Board’s rationale for finding discussions of wages and
job security inherently concerted would be equally applicable to conversations about workplace
health and safety, such as those set forth by Svoboda in his Facebook post in this case. Health
and safety concerns are also “grist on which concerted activity feeds,” and such discussions are
often “preliminary to organizing or other action for mutual aid or protection.” Accordingly, I 35
find that Svoboda’s Facebook comments about safety in the lineman industry were “inherently
concerted,” consistent with the Board’s legal theories discussed above, and as such, were
protected regardless of whether they were made with the express object of inducing group action.
Alternative Energy Applications, Inc., supra; Hoodview Vending, supra.
40
e. Svoboda’s Facebook post did not exceed the bounds of protection provided by Section 7
of the Act
Having found that Svoboda was engaged in protected concerted activities, I must next
determine whether his comments or conduct exceeded the bounds of that protected concerted 45
activity so that it would remove the protection of the Act. While the Respondent argues in its
post-hearing brief that Svoboda was not discharged on the basis of his Facebook post, the
JD–96–16
24
evidence establishes that the Respondent’s managers informed him that he was, in fact,
discharged for his Facebook post which they characterized as “negative” towards the
Respondent. Even though Svoboda was told that he was discharged for his Facebook comments
that were “negative” to the company, it is unclear from the record whether the Respondent is
asserting that the post was in some way offensive or indefensible conduct that exceeded the 5
bounds of protection, or whether it in some way was a public attack on the Respondent’s work or
business practices. In either case, there is no evidence to establish that Svoboda’s comments
were sufficient to remove his protected concerted activity from the protection of the Act under
any of the applicable legal standards.
10
It is well established that although employees are permitted some leeway for impulsive
behavior when engaged in protected activity, this leeway is balanced against “an employer’s
right to maintain order and respect.” Piper Realty, 313 NLRB 1289, 1290 (1994); Tampa
Tribune, 351 NLRB 1324, 1325–1326 (2007). When an employee engages in abusive or
indefensible misconduct during activity that is otherwise protected, the employee forfeits the 15
Act’s protection. DaimlerChrysler Corp., 344 NLRB 1324, 1329 (2005). The Board has held
that the standard is high for forfeiting the protection of the Act, stating that protected conduct
must be egregious or offensive to lose the protection it is provided. Consolidated Diesel, 332
NLRB 1019, 1020 (2000) (citations omitted), enfd. 263 F.3d 345 (4th Cir. 2001). In this regard,
the Board has determined that “the manner in which an employee exercises a statutory right must 20
be extreme to be beyond the Act’s protection.” (Id.) See also Trus Joist Macmillian, 341 NRLB
369, 371 (2004).
In Atlantic Steel Co., 245 NLRB 814 (1979), the Board set forth the test for determining
whether an employee loses the protection of the Act. Under that test, the Board balances four 25
factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of
the employees’ outburst; and (4) whether the outburst was, in any way, provoked by the
employer’s unfair labor practices.” (Id. at 816.) This multifactor framework enables the Board to
balance employee rights with the employer’s interest in maintaining order in its workplace.
Triple Play Sports Bar & Grille, 361 NLRB No. 31, slip op. 4 (2014); See Plaza Auto Center, 30
Inc., 355 NLRB 493, 494 (2010), enfd. in part 664 F.3d 286 (9th Cir. 2011), decision on remand
360 NLRB No. 117 (2014). However, in analyzing whether Svoboda’s posted comments on
social media were sufficiently egregious to lose the protection of the Act, I note that the Board
has found the Atlantic Steel framework discussed above is “tailored to workplace confrontations
with the employer,” and is “not well suited to address issues that arise in cases…involving 35
employees’ off-duty, offsite use of social media to communicate with other employees or with
third parties.” Triple Play Sports Bar & Grille, supra, slip op. at 3. Instead, the Board has found
in Pier Sixty, LLC, 362 NLRB No. 59 (2015), that the analysis to be applied in offsite, off-duty
use of social media cases is a totality of the circumstances test, which considers the following
nine factors:40
(1) Whether the record contained any evidence of the Respondent’s antiunion
hostility; (2) whether the Respondent provoked [the employee’s] conduct; (3)
whether [the employee’s] conduct was impulsive or deliberate; (4) the location of
[the employee’s] Facebook post; (5) the subject matter of the post; (6) the nature 45
of the post; (7) whether the Respondent considered language similar to that used
by [the employee] to be offensive; (8) whether the employer maintained a specific
JD–96–16
25
rule prohibiting the language at issue; and (9) whether the discipline imposed
upon [the employee] was typical of that imposed for similar violations or
disproportionate to his offense. Id.
Besides the Respondent’s vague assertions that Svoboda’s comments were “negative” to 5
the Cooperative, it offered no credible evidence that his comments were so offensive, abusive or
indefensible that they exceeded the bounds of protected concerted activity. Svoboda’s comments
were critical of some of the Respondent’s work safety practices and safety training, but they did
not identify the Respondent or any of its employees, and they were not abusive or threatening.
There is likewise no evidence that there was conduct by Svoboda accompanying his posted 10
comments which would have caused him to lose the protection of the Act.
In determining whether Svoboda’s posted comments on social media were so egregious
as to exceed the Act’s protection, an analysis of the “totality of the circumstances” factors
establishes that Svoboda’s comments did not exceed the bounds of protection. The record 15
reveals that the first factor, whether the Respondent displayed hostility towards Svoboda’s
protected conduct, weighs in favor of protection because the Respondent’s managers informed
him that he was discharged for engaging in protected activity, thus evincing hostility. With
regard to the second factor of provocation, the post does reveal that Svoboda had brought those
same safety concerns to the Respondent prior to his post, but to no avail. I find it reasonable to 20
conclude that Svobada was likely frustrated by that fact, and to that extent, was likely provoked
to some degree in making his comments about Respondent’s workplace safety conditions and
practices, thus favoring protection. With regard to the third factor of whether the conduct was
impulsive or deliberate, Svoboda’s comments appear to have been a deliberate response to a
safety question about how workplace accidents for lineman could be prevented. With regard to 25
the fourth and fifth factors, the location and the subject matter of the Facebook post, the posting
was not made at work and there is no evidence that it identified the Respondent or affected its
ability to provide its services to the public. There is therefore no evidence that the post impacted
Respondent’s relationship with its customers or affected its ability to provide services to its
customers. Pier Sixty, supra slip op. at 3, fn. 6, citing Restaurant Horikawa, 260 NLRB 197, 30
197–198 (1982). Therefore, the fourth and fifth factors weigh in favor of protection. With
regard to the nature of the post (factor six) and whether Respondent considered language similar
to that used by Svoboda to be offensive (factor seven), I find those factors both weigh in favor of
protection. While the nature of the posted language was critical of Respondent’s safety practices
and training for apprentices, it did not contain profanity or threats. In fact, the evidence 35
establishes that the post contained comments on safety that Svoboda had already raised with the
Respondent’s managers. In such a setting, Svoboda’s comments in his Facebook post would not
cause him to lose the protection of Section 7. Pier Sixty, slip op. at 3. With regard to whether
Respondent maintained a rule prohibiting the language used by Svoboda (factor 8), the evidence
weighs in favor of protection because comments on working conditions were not prohibited in 40
any of Respondent’s Conduct Rules. In addition, the factor of whether the discipline imposed
was typical of that imposed for similar infractions (factor 9) also weighs in favor of finding the
comments protected, as the evidence in this case does not establish that social media comments
had previously resulted in discharge for employees.
45
Based on an objective review of the evidence under the foregoing totality of the
circumstances standard, the factors are in favor of retaining the protection of the Act.
JD–96–16
26
Accordingly, I find that Svoboda’s comments about Respondent’s safety and training practices in
the Facebook post were not so egregious as to take him outside the protection of the Act.
If in fact the Respondent, by telling Svoboda he was discharged because his Facebook
comments were “negative” to the company, was inferring that his discharge was based on 5
disloyal or disparaging comments, I find that such an allegation is similarly unsupported by the
record and extant case law. The Board has held that allegations regarding disparaging
communications by employees with third parties or the general public that lose protection of the
Act are analyzed under the standards established in NLRB v. Electrical Workers Local 1229
(Jefferson Standard), 346 U.S. 464 (1953), and Linn v. Plant Guards Local 114, 383 U.S. 53 10
(1966). In Jefferson Standard, supra, the Supreme Court held that employees who publically
attacked the quality of their employer’s product and its business practices without relating their
criticism to a labor controversy were not discharged in violation of the Act. In that case, the
Court found the employees’ conduct amounted to disloyal disparagement of their employer, and
as such, exceeded the bounds of the Act’s protection. 346 U.S. at 475–477. In Linn, supra, the 15
Court limited remedies under state law for defamation occurring in union organizing campaigns
“to those instances in which the complainant can show that the defamatory statements were
circulated with malice and caused him damage.” 383 U.S. at 64–65. For such purposes, the
Court determined the meaning of “malice” was the comment was made “with knowledge of its
falsity, or with reckless disregard of whether it was true of false.” (Id. at 61.) The Board, in 20
applying these principles, has held that “employee communications to third parties in an effort to
obtain their support are protected where the communication indicated it is related to an ongoing
dispute between the employees and the employers and the communication is not disloyal,
reckless, or maliciously untrue as to lose the Act’s protection.’” Triple Play Sports Bar & Grille,
supra, slip op. at 5; MasTec Advanced Technologies, 357 NLRB No. 17, slip op. at 5 (2011)25
(quoting Mountain Shadows Golf Resort, 330 NLRB 1238, 1240 (2000)).
Svoboda’s Facebook comments at issue in this case are distinguishable from the
disparaging communications in the Jefferson Standard case that lost the protection of the Act.
Similar to an ongoing labor dispute, the comments in this case involved an ongoing Facebook 30
discussion involving lineman terms and conditions of employment such as workplace health and
safety and ways in which lineman accidents could be prevented. In addition, even though
Svoboda’s comments, were made in a forum which included some of Respondent’s employees,
employees of other employers, and the public, they never identified the Respondent, its
managers, or its employees. Therefore, Svoboda’s comments were not “so disloyal…as to lose 35
the Act’s protection” under Jefferson Standard, because they did not mention Respondent’s
name or disparage the Respondent or its services. Instead, the purpose of his comments were to
seek and provide mutual support toward group action encouraging the Respondent and other
lineman industry employers, to address problems in terms and conditions of employment such as
safety and safety training, not to disparage the Respondent or undermine its reputation. As such, 40
his comments were protected. Triple Play Sports Bar & Grille, supra, slip op. at 5.
In addition, Svoboda’s comments were not defamatory under the standard set forth in
Linn, because the Respondent failed to present evidence establishing that the comments were
maliciously untrue (i.e. were made with knowledge of their falsity or with reckless disregard for 45
their truth or falsity). Triple Play Sports Bar & Grille, supra, slip op. at 6. Svoboda’s
characterization of Respondent’s safety practices and safety training cannot be read as a
JD–96–16
27
statement of fact; rather, he was voicing a critical personal opinion of some of Respondent’s
safety practices and safety training in his workplace and in the lineman’s workplace in general.
Those comments therefore did not exceed the bounds of protection as established under Linn.
Triple Play Sports Bar & Grille, supra, slip op. at 6. Accordingly, I find that Svoboda’s
comments about Respondent’s safety and training practices in his Facebook post were not so 5
egregious as to take him outside the protection of the Act.
f. Svoboda was discharged on the basis of his protected concerted activity, in violation of
Section 8(a)(1) of the Act
10
In analyzing this allegation, I note that where an employer argues that it discharged an
employee for reasons unrelated to his protected activity, such as tardiness, poor work
performance, or as in this case, “because of his continued inability to get along with his
coworkers,”13 the Board and the courts rely on the so-called “mixed motive” or “dual motive”
discharge test set forth by the Board in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 15
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1983); See also MCPC Inc. v. NLRB, 813 F.3d 475,
490 (3d Cir. Feb. 12, 2016). In Wright Line, the Board announced the following causation test in
all cases alleging violations of Section 8(a)(3) or violations of Section 8(a)(1) of the Act turning
on employer motivation. Under Wright Line, the General Counsel must make a prima facie20
showing sufficient to support the inference that protected conduct was a “motivating factor” in
the employer’s adverse action. On such a showing, the burden shifts to the employer to
demonstrate that the same action would have taken place even in the absence of the protected
conduct. Mesker Door, 357 NLRB 591, 592 fn. 5 (2011); Donaldson Bros. Ready Mix, Inc., 341
NLRB 958, 961 (2004). 25
The General Counsel satisfies the initial burden under Wright Line by showing (1) the
employee’s protected activity; (2) the employer’s knowledge of that activity; and (3) animus
against that activity on the part of the employer. Mesker Door, supra at 592 fn. 5; Donaldson
Bros. Ready Mix, supra at 961; (2004); North Fork Service Joint Ventures, 346 NLRB 1025, 30
1026 (2006); Willamette Industries, 341 NLRB 560, 562 (2004); See also DHL Express (USA),
Inc., 360 NLRB No. 87 (2014). Proof of discriminatory motivation can be based on direct
evidence or can be inferred from circumstantial evidence based on the record as a whole. Mesker
Door, supra; See Fluor Daniel, Inc., 304 NLRB 970 (1991). As support for an inference of
unlawful motivation, the Board may rely on, among other factors, disparate treatment of the 35
affected employee and the timing of the discipline relative to the employee’s protected activity.
Mesker Door, supra; See Embassy Vacation Resorts, 340 NLRB 846, 848 (2003). In addition,
the Board may infer animus against protected activities from pretextual reasons given for the
adverse employment action. DHL Express, supra, slip op. at 1 and fn. 1 (2014).
40
On such a showing, the burden shifts to the employer to prove that it would have taken
the adverse action even in the absence of the employee’s protected conduct. Lucky Cab Co., 360
NLRB No. 43, slip op. 6 (2014); Austal USA, LLC, 356 NLRB 363, 364 (2010). This burden
may not be satisfied by an employer’s proffered reasons that are found to be pretextual, (i.e. false
reasons or reasons not in fact relied upon for the adverse employment action). Rather, it is well 45

13 See R. Br. p. 13.
JD–96–16
28
established that a finding of pretext defeats an employer’s attempt to meet its rebuttal burden.
Lucky Cab Co., supra, slip op. at 6; Stevens Creek Chrysler Jeep Dodge, 357 NLRB 633, 637
(2011), enfd. sub nom. Mathew Enterprise, Inc. v. NLRB, 498 Fed. Appx. 45 (D.C. Cir. 2012).
In addition, it is apparent that the employer does not sustain its burden by simply showing that a
legitimate reason for the action existed. As the Board stated in Roure Bertrand Dupont, Inc., 271 5
NLRB 443 (1984):
We have held that the burden shifted to an employer under Wright Line is one of
persuasion, and affirmative defense in which the employer must demonstrate by a
preponderance of the evidence that the same action would have taken place even 10
in the absence of the protected conduct. If an employer fails to satisfy its burden
of persuasion, the General Counsel’s prima facie case stands unrefuted and a
violation of the Act may be found. See Wright Line, 251 NLRB at 1088 fn. 11;
Bronco Wine Co., 256 NLRB 53 (1981); Rikal West, Inc., 266 NLRB 551 (1983).
Cf. Magnesium Casting Co., 259 NLRB 419 (1981).15
Therefore, in rebutting the General Counsel’s prima facie showing that the protected
conduct was a “motivating factor” in the employer’s decision, the employer cannot simply
present a legitimate reason for its action but must persuade, by a preponderance of the evidence,
that the same action would have taken place even in the absence of the protected conduct.20
Based on the record evidence, I find that an analysis under Wright Line demonstrates that
Svoboda’s discharge was discriminatorily motivated.
i. The General Counsel made a prima facie case of discrimination.25
First, the General Counsel has made a prima facie showing that Svoboda’s protected
conduct was a “motivating factor” in the Respondent’s decision to discharge him. In fact, the
undisputed evidence establishes that Respondent’s managers admitted that Svoboda’s protected
Facebook activity was at least one of the reasons he was discharged. There is no question that 30
Respondent was aware of Svoboda’s Facebook comments because its managers informed him
when he was discharged that they had read his Facebook post, and it was negative towards the
Respondent. There is likewise no question that Respondent harbored animus toward Svoboda’s
protected concerted Facebook comments critical of its safety practices and training because they
essentially informed him of such when they discharged him. 35
On such a showing, the burden shifts to the Respondent to demonstrate that Svoboda
would have been discharged even in the absence of the protected conduct. As mentioned above,
the burden is not sustained by showing a legitimate reason for the discharge existed, but instead
the Respondent must demonstrate by a preponderance of the evidence that he would have been 40
discharged even in the absence of his protected conduct. Roure Bertrand Dupont, Inc., supra.
For the reasons set forth below, I find the record establishes that the Respondent’s asserted
reasons are pretext for its unlawful motivation, and that the Respondent has not carried that
burden.
45
JD–96–16
29
ii. The Respondent’s asserted reasons for Svoboda’s discharge are without merit and
are pretext for its unlawful motivation.
The Respondent asserts that Svoboda was discharged “because of his continued inability
to get along with his coworkers,” and not because of his post on the Linejunk Facebook page. (R. 5
Br. pp. 13, 19.) In that connection, it asserts that Svoboda was discharged “because he had been
warned multiple times about his inability to work with his team, and immediately after his posts
every one of his immediate coworkers told Respondent’s management that they would no longer
work with him” and thus, even if the posts were protected, his termination was not unlawful. (R.
Br. p. 23.)10
The Respondent’s assertion that Svoboda was discharged based on an alleged inability to
get along with his co-workers is not supported by the record, which instead establishes that
Svoboda had been discharged on the basis of his Linejunk Facebook post. Svoboda credibly
testified that when Alons discharged him, he said it was brought to his attention that he 15
(Svoboda) “still had some harsh feelings with the cooperative and that [he’d] aired them on
Facebook, and they had policies in effect.” Respondent’s assertion is also contradicted by the
testimony of its own witnesses. Despite the fact that Alons was evasive when questioned on that
issue, he subsequently acknowledged that when he discharged Svoboda, he told him the
Facebook post was brought to his attention, it was all negative, and he made the post in a forum 20
he knew his co-workers were on. Haak’s testimony likewise revealed Svoboda was told he was
discharged because of his Facebook comments. Haak was cross-examined with his sworn
statement in his affidavit, wherein he admitted that Alons relayed to Svoboda during his
discharge that “the Facebook Post … had been brought to [their] attention and that [they] read
it….” and it was obvious Svoboda was referring to the employer in his comments, which were 25
“all negative.” Most importantly, Korver’s memorandum pertaining to Svoboda’s termination
meeting reflects that Svoboda was informed his discharge was based on his Facebook post.
According to Korver’s memorandum, Alons was made aware of “a social media post by Dave
[Svoboda]” that was “negative to the Cooperative and to some of the line crew.” (R. Exh. 1.)
The memorandum further stated that Alons and Haak “mentioned that it had come to their 30
attention that [Svoboda] had made a negative post on social media and this was another
demonstration of [Svoboda’s] bad attitude toward the Cooperative and his fellow employees and
it causes conflict and mistrust.” (R. Exh. 1.)
Contrary to his statements in his memorandum, however, Korver testified that his 35
decision to discharge Svoboda was not based on his Facebook comments, but instead on the fact
that he would have to change the employees’ work schedules and there was a risk “safety-wise”
with continuing to employ Svoboda. Korver testified that continuing to employ Svoboda “would
adversely impact [Respondent’s] work environment if [it] kept him employed.” (Tr. 285–286.)
In elaborating on that statement, Korver testified that the crew did not want to work with 40
Svoboda and “we would have to be changing work schedules that was going to affect our
efficiencies, but the big thing was what that could do safety-wise when you got guys that don’t
want to work with somebody, there’s not a trust there.” (Tr. 286.) The Respondent failed to
present any evidence to explain why Korver’s testimony that Svoboda was allegedly discharged
because he would have to change all the linemen’s work schedules and it would affect safety,45
differed from the reasons for discharge set forth in his memorandum and the reasons conveyed to
Svoboda at the time of his discharge—that his Facebook post was negative to the company. In
JD–96–16
30
addition, the reasons for discharging Svoboda based on changing work schedules and alleged
safety concerns were important factors the Respondent failed to allege as an affirmative defense
in its answer to the complaint, and they were also critical items that Korver failed to mention as
reasons for Svoboda’s discharge in his sworn affidavit provided to the Region during its
investigation of this case. 5
I find that the reasons asserted for the discharge by Korver in his testimony, and by the
Respondent in its brief, are not supported by the record, are not credible or plausible, and they
are contradicted by the credible testimony of Svoboda and the testimonies of Respondent’s own
witnesses which establish he was discharged on the basis of his Facebook comments. 10
As mentioned above, Svoboda’s testimony that the Respondent discharged him because
of his Facebook post was not only credible, it was corroborated by the testimony of Alons and
Haak, and by Korver’s memorandum. I have specifically discredited Korver’s testimony that
Svoboda was discharged based on work schedules having to be changed and on alleged safety 15
concerns. That unreliable testimony was contradicted by Alons and Haak, and by his own
memorandum documenting Svoboda’s discharge. In addition, I find Kover’s assertions for
discharge implausible. Korver was clearly the top management official responsible for making
the decision to discharge Svoboda and he personally drafted the memorandum regarding the
discharge. However, he failed to include any reference in the memorandum about having to 20
change employees’ work schedules or safety concerns if Svoboda continued to be employed.
Likewise, Svoboda was never informed that those were the reasons he was being discharged. I
simply find it implausible and unbelievable that Korver would neglect to inform Svoboda, either
verbally or in writing, that changing work schedules and safety concerns were the basis for his
discharge, if in fact that were true. I also find it equally implausible that he would neglect to 25
include those reasons in his memorandum documenting the discharge if those truly were the
reasons for discharge.
Finally, Korver’s asserted reasons lack support in the record because at the time of his
discharge, Svoboda was a Staking Technician, a non-bargaining unit position where he no longer 30
worked with the line crew on a daily basis. In that position, he only worked with crew members
approximately half of his time at work, and according to Elgersma the crew only worked with
him “occasionally” and “a lot less.” In fact, Koele testified that Svoboda was not part of the line
crew, and he would only “sometimes” help the line crew when he did not have staking work to
do. In addition, Koele recalled only working one time with Svoboda after he took the staking 35
technician job. Thus, Korver’s assertion that he would have to continually change the linemen’s
work schedules if he continued to employ Svoboda, when in fact Svoboda wasn’t even working
with the crew on a daily basis, and only “occasionally,” is unsupported by the record and is
implausible.
40
I also find Respondent’s assertions in its post-hearing brief that Svoboda was discharged
for an inability to get along with his co-workers and because his co-workers did not want to work
with him, are equally implausible, unsupported by the record, and unpersuasive. In that regard,
as mentioned above, while Svoboda previously worked with a crew, after October 2015 he only
worked with crew members “occasionally” or at the most, half his time at work. On that basis, 45
Respondent’s assertion that it discharged Svoboda because of an inability to get along with co-
workers, when in fact he was only working with them occasionally, rings hollow and is
JD–96–16
31
implausible. In addition, that assertion is nonsensical. In making this argument, the Respondent
would have us believe that it has provided its bargaining unit employees with the ability and
authority to determine which employees they worked with, and what work those employees were
to perform. It is Respondent’s inherent managerial right to determine which individuals it
employs, who they will work with, and what work they will be assigned. The Respondent has 5
failed to present any evidence establishing that it entered into an agreement with the Union
wherein it gave up its right to employ the workers it has chosen, assign them duties to perform,
and determine with whom they will work, and that it instead vested its bargaining unit employees
with that authority.
10
In addition, even though Respondent alleges that it discharged Svoboda because his co-
workers did not want to work with him, it ignores the fact that some of his co-workers had
voiced their desire to not work with him well in advance of his Facebook post. Koele requested
“multiple times” not to work with Svoboda over the 3 1/2 years that he worked with him and on
approximately 15 occasions he informed his managers that he did not want to work with 15
Svoboda. Thus, Koele’s requests not to work with Svoboda occurred “long before” the
Facebook post, and such requests had nothing to do with the Facebook post. I find the fact that
Respondent did not discharge Svoboda until he engaged in protected concerted activity in
December 2014, at a time when he no longer worked with the line crew on a regular basis,
constitutes further evidence that Respondent’s asserted reasons for Svoboda’s discharge lack 20
merit and are pretextual. See, e.g. Citizens Trust Bank, 206 NLRB 320, 324–325 (1973) (where
Board found an employer’s reliance on employees’ excessive absences to be pretext covering its
discriminatory motive for their discharges where that employer condoned the employees’
absences until they engaged in a protected concerted work stoppage).
25
In addition, the Respondent’s reliance on its employees’ determinations of who they want
to work with and whom they do not want to work with is seriously misplaced. That factor is
immaterial to the determination of whether an employer’s decision to discharge an employee was
lawful. In St. Luke’s Episcopal-Presbyterian Hospitals, Inc., 331 NLRB 761, 762 (2000), the
Board found irrelevant an employer’s justification that co-workers no longer wanted to work 30
with the discharged employee because they were angry about protected comments she made, and
held that an employee’s “activity does not lose the Act’s protection merely because it angered
her fellow employees or supervisors.”14
I note that Board precedent further establishes that Respondent’s shifting reasons for 35
Svoboda’s discharge lack merit and must be dismissed. The Board has found shifting defenses
where the employer’s reason for discharge offered at trial differed from what was set forth when
the discharge occurred. City Stationery, Inc., 342 NLRB 523, 524 (2003). The Board has also
found that existence of shifting explanations or reasons for an employer’s adverse employment
action are persuasive evidence that the asserted reasons are pretextual and evidence of 40
discriminatory motivation. Lucky Cab Co., 360 NLRB No. 43, slip op. at 4 (2014); Naomi

14 Enforcement denied, 268 F.3d 575 (8th Cir. 2001). I note that although the court reversed the
Board’s decision in St. Luke’s, that case is factually distinguishable from the instant case. In this case,
Svoboda’s Facebook post does not mention the Respondent by name, and his Facebook post relates to
Respondent’s safety practices and their impact on employees, not their impact on Respondent’s
customers.
JD–96–16
32
Knitting Plant, A Division of Andrex Industries Corp., 328 NLRB 1279, 1283 (1999), citing
Mastercraft Casket Co., 289 NLRB 1414, 1420 (1988), enfd. 881 F.2d 542 (8th Cir. 1989).
Based on extant Board law, I find that the Respondent’s asserted reasons are pretextual, and the
facts of this case warrant finding that the Respondent’s true motive was unlawful. Shattuck Denn
Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); North Fork Services Joint Ventures, 5
346 NLRB 1025, 1027 (2006).
Based on the above, the Respondent failed to show that it would have taken the same
action against Svoboda in the absence of his protected concerted activities. Accordingly, based
on the record evidence in this case and the well-established Board law discussed above, I find 10
that the Respondent unlawfully discharged Svoboda based on his protected concerted activities,
in violation of Section 8(a)(1) of the Act.
2. The Respondent coercively informed Svoboda that he was discharged for engaging in
protected concerted activity, also in violation of Section 8(a)(1) of the Act.15
As mentioned above, it is undisputed that Svoboda was informed by the Respondent that
he was discharged because of his comments in his Facebook post. The Board has made it very
clear that a respondent’s statement to an employee linking his or her unlawful discharge to
protected activity independently violates Section 8(a)(1), separate and apart from the discharge 20
itself. Triple Play Sports Bar & Grille, supra at slip op. 1 fn. 2; see also Benesight, Inc., 337
NLRB 282, 283–284 (2001) (finding a statement to employee linking her unlawful discharge to
her protected activity independently violated Section 8(a)(1) separate from the discharge
violation). In fact, similar to the instant case, the Board held in Triple Play Sports Bar & Grille,
supra, that an employer separately violated Section 8(a)(1) by telling the two employees it 25
discharged that their Facebook activity was the reason for their discharges. (Id. slip op. at 1 fn.
2.) Accordingly, I find that the Respondent, by Alons’s statements, coercively informed
Svoboda that his protected concerted Facebook activity was the basis for his discharge, which
constituted a separate and distinct violation of Section 8(a)(1) of the Act.
30
The General Counsel did not allege in the complaint (nor did it amend the complaint at
the hearing to allege) that Alons, an admitted supervisor and agent of the Respondent within the
meanings of Section 2(11) and (13) of the Act, respectively, violated the Act by informing
Svoboda that he was discharged for his Facebook activity. It is well established, however, that
the Board may find a violation and provide a remedy for it, even in the absence of a specified 35
allegation in the complaint if the issue is closely connected to the subject matter of the complaint
and it has been fully litigated. Greenbrier Valley Medical Center, 360 NLRB No. 127, 127 fn. 2;
Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990).
In this case, the statement to Svoboda that he was discharged for his Facebook post is 40
closely connected to the subject matter of the complaint allegation that he was discharged
because he “engaged in concerted activities for the purposes of mutual aid and protection by
posting comments regarding his concerns about safety on a Facebook page….” (GC Exh. 1(e).)
In fact, Alon’s statement to Svoboda at the time of his discharge is not only closely connected to
the subject matter of the complaint, it is undisputed evidence supporting the finding that his 45
discharge was unlawful. I find that the matter was also fully litigated at the hearing, where the
parties had ample opportunity to question and cross-examine Svoboda about what Respondent’s
JD–96–16
33
managers told him when he was discharged. In addition, the parties had the opportunity to
examine both Alons and Hack about what Svoboda was told about his discharge, and Alons even
admitted to informing him that he was discharged for his Facebook comments. Thus, I find it is
properly within my discretion to find this violation based on the evidence adduced at the hearing.
Greenbrier Valley Medical Center, supra; Pergament United Sales, supra; Clock Electric, Inc., 5
338 NLRB 806, 806 fn. 1 (2003); Hi-Tech Cable Corp., 318 NLRB 280 (1995); Williams
Pipeline Co., 315 NLRB 630 (1994).
3. The Respondent maintained and enforced unlawful Conduct Policies or rules in violation
of Section 8(a)(1) of the Act, and even assuming Svoboda was not engaged in protected 10
concerted activity, the Respondent discharged him pursuant to those unlawful rules, also
in violation of Section 8(a)(1) of the Act.
a. The maintenance and enforcement of unlawful policies or rules
15
Korver testified that Svoboda was discharged pursuant to rules concerning employee
conduct (Policy Nos. C-6 and C-9). Policy C-6 addresses “Attitude, Spirit and Cooperation.” It
states that employees are “expected to use the [Respondent’s] problem-solving procedure to
resolve misunderstanding (sic) or disagreements that could otherwise affect the employees’
ability to do their jobs in an efficient and positive manner…” and “employees should use the 20
grievance procedure…when they have complaints about their working conditions….” (GC Exh.
11.) The other conduct rule at issue is Policy C-9, which addresses employees’ rights to discuss
or disclose certain terms and conditions of employment. That policy rule provides examples of
personal conduct that may result in corrective action, including termination. One of those listed
examples is “disclosure of confidential information.” (GC Exh. 11.) 25
The General Counsel argues that Policy C-6 is unlawful because it instructs employees to
resolve their complaints through its own “problem solving procedure,” thereby prohibiting the
use of other methods to resolve complaints, such as discussing them with each other. The
General Counsel likewise contends that Policy C-9 is unlawful because the phrase “confidential 30
information” is overly broad. The Respondent denies that either policy is unlawful.
As mentioned above, Section 8(a)(1) of the Act makes it an unfair labor practice for an
employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed
in Section 7 [of the Act].” Under Section 7 of the Act, employees have the right to engage in 35
activity for their “mutual aid or protection,” including communicating regarding their terms and
conditions of employment. Eastex, supra. That right includes the right of employees to discuss,
debate, and communicate with each other regarding their workplace terms and conditions of
employment. Consequently, the Board has held that employees’ concerted communications
regarding matters affecting their employment with other employees, their employer’s customers,40
or with other third parties such as governmental agencies, are protected by Section 7 and, with
some exceptions not applicable here, cannot lawfully be banned. See Kinder-Care Learning
Centers, 299 NLRB 1171, 1171–1172 (1990).

The Board has held that a rule violates Section 8(a)(1) of the Act if it would reasonably 45
tend to chill employees in the exercise of their Section 7 rights. Lutheran Heritage Village-
Livonia, 343 NLRB 646, 646 (2004), citing Lafayette Park Hotel, 326 NLRB 824, 825 (1998),
JD–96–16
34
enfd. 203 F.3d 52 (D.C. Cir. 1999); Hills & Dales General Hospital, 360 NLRB No. 70, slip op.
at 5 (2014). If the rule explicitly restricts activities protected by Section 7, it is unlawful.
Lutheran Heritage Village-Livonia, supra at 646. If it does not, “the violation is dependent upon
a showing of one of the following: (1) employees would reasonably construe the language to
prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the 5
rule has been applied to restrict the exercise of Section 7 rights.” (Id. at 647.) The Board, in
analyzing work rules, “must give the rule a reasonable reading…,” and “refrain from reading
particular phrases in isolation, and… must not presume improper interference with employee
rights.” (Id. at 646.) In this case, it is not alleged that the rules in question were promulgated in
response to union activity, or that they have been applied to restrict the exercise of Section 7 10
rights. However, the General Counsel argues that under the first prong of the test employees
would reasonably construe the language in the policies to prohibit their Section 7 activities. For
the reasons set forth below, I find merit in the General Counsel’s assertions that the rules are
unlawful.
15
Pursuant to Respondent’s C-6 policy employees are expected to use the company’s
internal problem-solving procedure to resolve “misunderstanding[s] or disagreements that
could…affect …employees’ ability to do their jobs….” (GC Exh. 11.) Employees would
reasonably believe that in order to comply with that rule they are to use the internal grievance
procedure to resolve complaints or grievances regarding their working conditions, thereby 20
prohibiting them from utilizing other methods to resolve such workplace issues, including
discussing such issues with one another, third parties, or governmental agencies. In this case, the
employees would undoubtedly reach that conclusion because the rule’s applicability to their
terms and conditions of employment is unmistakable. It explicitly states that “[e]mployees
should use the grievance procedure…when they have complaints about their working 25
conditions.” By informing employees’ that they are “expected” to use an internal procedure to
resolve their complaints about working conditions, employees would reasonably construe that as
proscribing them from protesting or discussing their terms and conditions of employment, which
are clearly protected by Section 7. The Respondent’s rule does not present accompanying
language that would tend to restrict its application, and there is nothing in the rule that even 30
arguably suggests that protected complaints about terms and conditions of employment are
excluded from the broad parameters of the rule. As such, employees would reasonably conclude
that the rule requires them to refrain from discussing complaints about their working conditions
or engaging in certain protected communications.
35
In defense of Policy C-6, the Respondent argues that it would not be reasonably
construed by employees to restrict Section 7 activities because the plain language does not
“require” employees to exclusively use its internal problem solving procedure; instead it states
that employees are “expected to” or “should” resolve complaints about their working conditions.
However, in determining whether employer pronouncements violate Section 8(a)(1), the 40
Supreme Court and the Board have recognized the assessment “must be made in the context of
its labor relations setting,” and “must take into account the economic dependence of the
employees on their employers, and the necessary tendency of the former, because of that
relationship, to pick up intended implications of the latter that might be more readily dismissed
by a more disinterested ear.” NLRB v. Gissel Packing Co., 395 U.S. 575, 580 (1969). In Whole 45
Foods Market, 363 NLRB No. 87, slip op. at 4 fn. 11 (2015), the Board held that “[w]here
reasonable employees are uncertain as to whether a rule restricts activity protected under the Act,
JD–96–16
35
that rule can have a chilling effect on employees’ willingness to engage in protected activity.
Employees, who are dependent on the employer for their livelihood, would reasonably take a
cautious approach and refrain from engaging in Section 7 activity for fear of running afoul of a
rule whose coverage is unclear.” Pronouncing that employees are “expected” to or “should”
utilize its problem solving procedure for complaints about working conditions conveys a duty or 5
obligation to use that procedure as more of a directive than a mere suggestion. In Radisson
Plaza Minneapolis, 307 NLRB 94 (1994), enfd. 987 F.2d 1376 (8th Cir. 1993), the Board
rejected an Administrative Law Judge’s conclusion that maintenance of an employee handbook
provision announcing that employee salaries “shouldn’t be discussed with anyone but your
supervisor or the Personnel Department” was lawful because the rule “was not mandatory.” The 10
Board, in rejecting the suggestion that a finding of violation was necessarily premised on
“mandatory phrasing” (or subjective impact or evidence of enforcement), found instead that it
must be assessed based “on the reasonable tendency of such a prohibition to coerce employees in
the exercise of fundamental rights protected by the Act.” (Id.) See also, Heck’s, Inc., 293 NLRB
1111, 1119 (1989) (finding a rule “requesting” that employees not discuss wages was unlawful). 15
Thus, based on established Board law, Policy C-6 is unlawful.
I find that Policy C-9 is likewise unlawful. Policy C-9, entitled “Personal Conduct,”
provides that “[w]here conduct does not meet expectations, corrective action, which could
include termination, will take place.” That policy specifically lists one example of such 20
“…conduct that may result in corrective action or termination” is “disclosure of confidential
information.” An employer rule is unlawfully overbroad when employees would reasonably
interpret it to encompass protected activities. Triple Play Sports Bar & Grille, supra, slip op. at
7. I find that employees would reasonably believe or interpret this policy rule as proscribing any
discussions about their terms and conditions of employment, such as wages, hours, and working 25
conditions (and such as Respondent’s safety practices or safety training), that the Respondent
may deem to be “confidential information.” The rule provides no illustrative examples to
employees of what Respondent considers to be “confidential information.” Therefore, I find that
the term is “sufficiently imprecise” and that employees would reasonably understand it to
encompass wages, hours, and other terms and conditions of employment, and “discussions and 30
interactions protected by Section 7.” (Id. slip op. at 7); First Transit, Inc., 360 NLRB No. 72, slip
op. at 3 (2014) (quoting 2 Sisters Food Group, 357 NLRB No. 168, slip op. at 2 (2011); See e.g.,
Cintas Corp. v. NLRB, 482 F.3d 463, 469–470 (D.C. Cir. 2007) (approving the Board’s finding
that a rule requiring employees to maintain “confidentiality or any information concerning the
company, its business plans, its partners, new business efforts, customers, accounting and 35
financial matters” was unlawfully overbroad), enfg. 344 NLRB 943 (2005); Brockton Hospital v.
NLRB, 294 F.3d. 100, 106 (D.C. Cir. 2002) (approving the Board’s finding that a rule prohibiting
discussions of “[i]nformation concerning patients, associates, or hospital operations…except
strictly in connection with hospital business” was unlawfully overbroad), enfg. 333 NLRB 1367
(2001). 40
Thus, I find that the Respondent’s maintenance and enforcement of unlawful Conduct
Policies C-6 and C-9, constituted violations of Section 8(a)(1) of the Act.
45
JD–96–16
36
b. Svoboda’s discharge pursuant to those unlawful policies or rules constituted a violation
of Section 8(a)(1) of the Act
The Board has long held that discipline imposed pursuant to an unlawfully overbroad rule
is unlawful (the “Double Eagle rule”). See, e.g. Double Eagle Hotel & Casino, 341 NLRB 112, 5
112 fn. 3 (2004), enfd. 414 F.3d 1249 (10th Cir. 2005), cert. denied 546 U.S. 1170 (2006). In
Continental Group, Inc., 357 NLRB 409 (2011), the Board clarified the Double Eagle rule by
holding that discipline imposed pursuant to an unlawfully overbroad rule violates the Act when
an employee violates the rule by “(1) engaging in protected conduct or (2) engaging in conduct
that otherwise implicates the concerns underlying Section 7 of the Act.” Continental Group, Inc., 10
supra at 412. The Board made it clear that the Double Eagle rule is applicable to situations
where an employer disciplines an employee pursuant to an overbroad rule for conduct “that
touches the concerns animating Section 7” (e.g., conduct that seeks higher wages) that is
protected, but not concerted. Id. In making that determination, the Board reasoned that the
potential “chilling effect” on employees’ exercise of their Section 7 rights is even greater in 15
those situations. Id.
However, the Board held that an employer will avoid liability for discipline it imposes
pursuant to an overbroad rule if it “…can establish that the employee’s conduct actually
interfered with the employee’s own work or that of other employees or otherwise actually 20
interfered with the employer’s operations, and that the interference, rather than the violation of
the rule, was the reason for the discipline.” Id; See also Switchcraft, Inc., 241 NLRB 985 (1979),
enfd. 631 F.2d 734 (7th Cir. 1980). The employer has the burden of not only asserting this
affirmative defense, but also establishing that the employee’s interference with the operation or
production was the actual reason for the discipline. The Double Eagle rule thus reflects the 25
Board’s balancing of employees’ Section 7 rights and employers’ legitimate interests in being
able to establish work rules for purposes of maintaining discipline and production. Id. at 412–
413. Critically, an employer’s mere citation to an overbroad rule as the basis for the discipline
will be insufficient to meet its burden of proof. (Id. at 412.) Therefore, if the employer provides
the employee with a reason (either oral or written) for imposing the discipline, the employer 30
“…must demonstrate that it cited the employee’s interference with production and not simply the
violation of the overbroad rule.” Id.; See e.g. Gerry’s I.G.A., 238 NLRB 1141, 1151 (1978),
enfd. 602 F.2d 1021 (1st Cir. 1979) (holding “It is impossible, of course, for the employer…to
establish [that the employee was discharged based on interference with production] when
interference with work is not the reason given in the discharge letter and the discharge letter 35
instead is in the literal language of the overly broad rule.”)
The record establishes that Svoboda was engaged in conduct clearly within the protection
of Section 7 of the Act when he made his Linejunk Facebook post. Those Facebook comments
constituted protected concerted conduct, and engagement in conduct that implicates the concerns 40
underlying Section 7. The evidence also establishes that Respondent discharged him on the basis
of that protected concerted activity, and pursuant to its overbroad conduct policies or rules. In
this case, there is insufficient evidence that Svoboda’s Facebook post interfered with his work,
the work of Respondent’s employees, or with Respondent’s operations. His Facebook post
occurred outside of work and on nonworking hours, thereby having no impact at all on his work, 45
the work of his co-workers, or the Respondent’s ability to provide services to its customers. Even
assuming credit is given to Respondent’s asserted basis for discharging Svoboda on the fact that
JD–96–16
37
his coworkers no longer wanted to work with him due to his protected Facebook comments
(which I have soundly discredited and rejected), there is insufficient evidence to establish that
any such interpersonal friction would have actually affected the Respondent’s operations.

While the Respondent may argue that Svoboda’s protected Facebook comments exhibited 5
a “poor attitude” or that some of his co-workers who were angered by his comments no longer
wanted to work with him, there is no evidence that such factors interfered with the Respondent’s
operation or its employees’ work. As mentioned above, I find it immaterial whether the line
crew wanted to work with him, as the Board has held that the subjective feelings of co-workers
toward an employee’s protected concerted activity are not relevant considerations in determining 10
whether an employer’s decision to discharge that employee was lawful. St. Luke’s Episcopal-
Presbyterian Hospitals, supra at 762. In addition, at the time of Svoboda’s discharge, he held a
non-bargaining unit position, was not interacting with the line crew on a regular basis, and was
only working with them on occasion, which diminishes any argument that some of the crew
members’ desires not to work with him would have affected the Respondent’s ability to provide 15
services to its customers. Furthermore, and most importantly, some of Svoboda’s co-workers
had previously expressed a desire not to work with him well in advance of his protected
Facebook post, and there is absolutely no evidence that such feels in any way affected the line
crew’s work or the Respondent’s operation of its business. There is thus insufficient evidence to
establish that any such interpersonal friction would have actually affected the Respondent’s 20
operations. See PCC Structurals, Inc., 330 NLRB 868, 874 fn. 23 (2000) (rejecting an
employer’s alleged justification for discharging an employee where, inter alia, the evidence
established “mere interpersonal friction” rather than actual harassment of other employees).
Finally, even if sufficient evidence existed demonstrating that Svoboda’s protected 25
conduct interfered with the Respondent’s operation, there is no evidence that such interference
was the reason for his discharge, or that it was even conveyed to Svoboda as the reason for is
discharge. In this regard, the Respondent failed to assert as an affirmative defense in its answer
to the complaint that Svoboda’s conduct allegedly interfered with its business operations. The
Respondent also did not inform Svoboda, either in writing or orally, that he was being 30
discharged on the basis of alleged interference with its operation. Instead, Respondent’s
managers informed him that he was being discharged on the basis of his Facebook post which it
characterized as “negative” to the company.
Thus, the Respondent has not met its burden of establishing that Svoboda’s protected 35
conduct interfered with its operations, and even assuming such interference, it failed to meet its
burden of showing that interference with its operations was the actual reason for the discharge.
Accordingly, the Respondent’s discharge of Svoboda pursuant to its unlawful policies or rules
constituted a separate violation of Section 8(a)(1) of the Act.
40
CONCLUSIONS OF LAW
1. The Respondent, North West Rural Electric Cooperative is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
45
2. The Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of
the Act by discharging employee David James Svoboda on December 8, 2014, because of his
JD–96–16
38
engagement in protected concerted activities, and for also discharging him pursuant to
unlawfully maintained and enforced conduct policies or rules.
3. The Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of
the Act by coercively informing employee David James Svoboda on December 8, 2014, that he 5
was being discharged for his protected concerted activity in his Facebook post.
4. The Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of
the Act by maintaining and enforcing at its Orange City, Iowa facility: (1) Policy No. C-6 which
instructs employees to use Respondent’s internal grievance procedure to resolve complaints or 10
grievances concerning their working conditions, thereby prohibiting employees from utilizing
other methods to resolve complaints or grievances, including by discussing them with other
employees, third parties, or government agencies; and (2) Policy No. C-9 which prohibits the
“disclosure of confidential information,” there prohibiting employees from discussing complaints
about their working conditions or engaging in protected communications.15
5. The above unfair labor practices affect commerce within the meaning of Section 2(6) and
(7) of the Act.
REMEDY20
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
25
The Respondent, having discriminatorily discharged David James Svoboda, shall be
ordered to offer him reinstatement to his former position, or if that job no longer exists, to a
substantially equivalent position, without prejudice to his seniority or any other rights or
privileges previously enjoyed, and to make him whole for any loss of earnings and other benefits
he may have suffered as a result of the discrimination against him. As this violation involves a 30
cessation of employment, the make whole remedy shall be computed on a quarterly basis, less
any interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with Don Chavas, LLC
d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014), the Respondent shall compensate 35
Svoboda for the adverse tax consequences, if any, of receiving a lump-sum backpay award. In
addition, in accordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), the
Respondent shall, within 21 days of the date the amount of backpay is fixed either by agreement
or Board order, submit and file with the Regional Director for Region 18 a report allocating the
backpay award to the appropriate calendar year for said employee. The Regional Director will 40
then assume responsibility for transmission of the report to the Social Security Administration at
the appropriate time and in the appropriate manner.
In accordance with King Soopers, Inc., 364 NLRB No. 93 (2016), the Respondent shall
also compensate Svoboda for search-for-work and interim employment expenses regardless of 45
whether those expenses exceed his interim earnings. Search-for-work and interim employment
expenses shall be calculated separately from taxable net backpay, with interest at the rate
JD–96–16
39
prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical
Center, supra.
The Respondent shall also be ordered to expunge from its files any and all references to
the discriminatory and unlawful discharge of Svoboda, and notify him in writing that this has 5
been done and that evidence of the discriminatory and unlawful action will not be used against
him in any way.
Finally, the Respondent shall be ordered to revise or rescind Policy No. C-6 and Policy
No. C-9 of its employee conduct policies. This is the standard remedy to assure that employees 10
may engage in protected activity without fear of being subjected to an unlawful rule. See Hills &
Dales General Hospital, supra, slip op. at 2–3; see also Guardsmark, LLC, 344 NLRB 809, 812
(2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007). As stated therein, the Respondent
may comply with the order of rescission by reprinting Policy No. C-6 and Policy No. C-9
without the unlawful language or, in order to save the expense of reprinting the whole policy 15
manual, it may supply its employees with policy handbook inserts stating that the unlawful rules
have been rescinded or with lawfully worded policies on adhesive backing that will correct or
cover the unlawful portions of the policies or the unlawfully broad portions of the policies, until
it republishes the policies without the unlawful provisions. Any copies of the conduct policies
that include the unlawful policies or rules must include the inserts before being distributed to 20
employees. Hills & Dales General Hospital, supra, slip op. at 3; Guardsmark, LLC, supra at 812
fn. 8; See also Bettie Page Clothing, 359 NLRB 777, 779–780 (2013).
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended:1525
ORDER
The Respondent, North West Rural Electric Cooperative, Orange City, Iowa, its officers,
agents, and representatives, shall30
1. Cease and desist from
(a) Maintaining and/or enforcing rules or policies that require employees to resolve
complaints and/or grievances about their working conditions only through its internal 35
problem-solving procedure or grievance procedure, and maintaining and/or enforcing
rules or policies that prohibit employees from the disclosure of confidential
information which prohibits employees from addressing complaints, grievances, and
other issues in alternate ways, or prohibits or interferes with employees’ rights to
discuss or otherwise disclose wages, benefits, and other terms and conditions of their 40
employment.

15 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–96–16
40
(b) Discharging or otherwise discriminating against employees because they engage in
protected concerted activities;
(c) Discharging or otherwise discriminating against employees pursuant to or on the
basis of unlawful or overly broad employee policies or rules;5
(d) Coercively informing employees that they have been discharged on the basis of their
protected concerted activities;
(e) In any like or related manner, restraining or coercing employees in the exercise of the 10
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days of this Order, revise or rescind employee policies that are overbroad, 15
ambiguous, or otherwise limit employees’ rights under the National Labor Relations
Act insofar as they require employees to resolve complaints and/or grievances only
through Respondent’s grievance procedure or prohibit employees from addressing
complaints, grievances, and other issues in alternate ways (Policy C-6); and prohibit
or interfere with employees’ rights to discuss or otherwise disclose wages, benefits, 20
and other terms and conditions of employment (Policy C-9).
(b) Furnish all current employees with inserts for the current employee conduct policies
that: (1) advise employees that the above-mentioned unlawful policies or rules have
been rescinded, or (2) provide employees with the language of revised lawful policies 25
or rules on adhesive backing that will cover the above-mentioned policies; or (3)
publish and distribute to employees policies that do not contain the above-mentioned
unlawful policies or rules, or which contain or provide the language of lawful policies
or rules.
30
(c) Within 14 days from the date of this Order, offer David James Svoboda 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.
35
(d) Make whole David James Svoboda for any loss of earnings and other benefits
suffered as a result of his unlawful discharge and discrimination against him,
including any search-for-work and interim employment expenses, in the manner set
forth in the remedy section of this decision.
40
(e) Compensate David James Svoboda for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and file with the Regional Director for Region
18, within 21 days of the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the appropriate calendar
year(s).45
(f) Within 14 days from the date of this Order, remove from its files any reference to
unlawful discharge of
employee in writing that this has been done and that the
against him in any way
5
(g) Preserve and, within 14 days of a request, or such additional time as t
Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including elect
copies of such records if stored in electronic form, necessary to analyze the amount of 10
backpay due under the terms of this
(h) Within 14 days after service by the Region, post at its
copies of the attached notice m
provided by the Regional Director for Region 15
Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
notices to employees are customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other elect20
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. I
the facility involved in these proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current employees and former employees 25
employed by the Respondent at any time since
(i) Within 21 days after service by the Region, file with the Regional Director
18 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.30
Dated, Washington, D.C. September
35

16 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.”
41
David James Svoboda, and within 3 days thereafter
discharge will not be used
.
Order.
facility in Orange City, Iowa
arked “Appendix.”16 Copies of the notice, on forms
18, after being signed by the
places, including all places where
ronic means, if the Respondent
f the Respondent has gone out of business or closed
December 8, 2014.
28, 2016
Thomas M. Randazzo
Administrative Law Judge
JD–96–16
the
, notify said
he Regional
ronic
,
for Region
JD–96–16
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 maintain and/or enforce policies or rules that require you to resolve complaints
and/or grievances only through our grievance procedure or prohibit you from addressing
complaints, grievances, and other issues in alternate ways; or maintain and/or enforce policies or
rules that prohibit or interfere with your rights to discuss or otherwise disclose wages, benefits,
and other terms and conditions of your employment.
WE WILL NOT discharge or otherwise discriminate against you on the basis of, or pursuant to,
unlawful, overly broad, or ambiguous employee policies or rules.
WE WILL NOT discharge or otherwise discriminate against you for engaging in protected
concerted activities.
WE WILL NOT coercively inform you that you have been discharged or otherwise
discriminated against for engaging in protected concerted activities.
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 Act, which are listed above.
WE WILL, within 14 days of the Board’s Order, revise or rescind employee policies or rules
that are unlawful, overbroad, ambiguous, or otherwise limit your rights under the National Labor
Relations Act insofar as they require you to resolve complaints and/or grievances only through
our grievance procedure or prohibit you from addressing complaints, grievances, or other issues
in alternate ways (Policy C-6); and prohibit or interfere with your rights to discuss or otherwise
disclose wages, benefits, and other terms and conditions of your employment (Policy C-9), and
WE WILL advise employees in writing that we have done so and that the unlawful policies or
rules will no longer be enforced.
WE WILL furnish you with inserts for your current employee conduct policies that: (1) advise
you that the above-mentioned policies have been rescinded, or (2) provide you with language of
JD–96–16
lawful or revised policies on adhesive backing that will cover the above-mentioned unlawful
policies; or WE WILL publish and distribute to you revised employee conduct policies that do
not contain the above-mentioned unlawful policies, or provide the language of the lawful policies
or rules.
WE WILL, within 14 days from the date of the Board’s Order, offer David James Svoboda
immediate and 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 David James Svoboda whole for any loss of earnings and other benefits
resulting from his unlawful discharge, less any net interim earnings, plus interest, including any
search-for-work and interim employment expenses he incurred as a result of his unlawful
discharge.
WE WILL compensate David James Svoboda for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region
18, within 21 days of the date the amount of backpay is fixed, either by agreement or Board
order, a report allocating the backpay award to the appropriate calendar year(s).
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
references to the unlawful discharge of David James Svoboda, and WE WILL, within 3 days
thereafter, notify said employee in writing that this has been done and that the discharge will not
be used against him in any way.
NORTH WEST RURAL ELECTRIC COOPERATIVE
(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 or you may call the Board’s toll-free number 1-866-667-NLRB (1-866-667-6572).
Hearing impaired persons may contact the Agency’s TTY service at 1-866-315-NLRB. You may also obtain
information from the Board’s website: www.nlrb.gov.
Federal Office Building
212 3rd Avenue S, Suite 200
Minneapolis, MN 55401
(612) 348-1757
Hours: 8:00 a.m. to 4:30 p.m. CT
JD–96–16
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/18-CA-150605 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, (612) 348-1757.