The full case caption appears at the
end of this opinion. On November 18, 1997, Administrative Law Judge Albert A. Metz issued the attached decision. The Respondent filed exceptions with supporting argument.
[FOOTNOTE 1] The General Counsel filed an answering brief, and the Respondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,
[FOOTNOTE 2] and conclusions only to the extent consistent with this Decision and Order.
[FOOTNOTE 3] 1. The Charging Parties are security guards employed at the Respondent’s Littleton, Colorado facility. They are represented by the Plant Guard Workers under a collective- bargaining agreement with the Respondent. The contract contains a grievance and arbitration procedure. In February 1996,
[FOOTNOTE 4] Charging Party Joseph Fiala was told by fellow guard Jolene Conn that she had medical restrictions that prevented her from wearing a sidearm and from handling classified trash. Fiala was concerned that Conn could not effectively back up other guards in situations requiring a weapon, and that other guards would have to handle the trash that Conn otherwise would have handled. At about the same time, Conn told Charging Party Lee Gutierrez about her medical condition (but not her medical restrictions).
[FOOTNOTE 5] On April 3, supervisor Jerry Kendell told Gutierrez that Conn had some medical restrictions. Around April 8, Gutierrez talked to Fiala and guard Steve Piccioni about how Conn’s medical restrictions might affect her work assignments. Fiala and Gutierrez discussed filing a grievance. They also called steward Dave Stertz and told him of their concerns that Conn would be unable to back up other guards, that she was violating the contract by not doing classified trashing, and that she might be depriving other guards of overtime opportunities by working at posts for which other guards would be more qualified. Conn soon learned of the other guards’ conversations about her physical limitations and filed an internal complaint with the Respondent, contending that the talk had created a hostile work environment. On April 11, supervisor Kendell told Stertz, Fiala, and Gutierrez to stop talking about Conn’s medical restrictions. Fiala explained that they had discussed Conn’s situation because they were considering filing a grievance. He suggested that Conn be assigned to a post where her medical restrictions would not pose problems. Kendell said that he did not make those decisions, and repeated that the employees should not discuss the issue. Fiala countered that he thought the matter was grievable and that he was entitled to discuss it with union officials. Kendall said, “You heard what I told you.” The judge found that, in discussing the effects of Conn’s medical restrictions on other guards as possibly grievable, the employees were discussing working conditions that affected them, and thus were engaged in protected concerted activity. He therefore found that Kendell violated Section 8(a)(1) by directing them not to speak of those issues. In its exceptions, the Respondent contends that the judge failed to take account of its obligations under the Americans with Disabilities Act (ADA)
[FOOTNOTE 6] to prevent development of a hostile work environment, to avoid harassment of and retaliation against employees with disabilities, and to maintain the confidentiality of medical information. The Respondent argues that its restrictions on employee discussions were justified by its need to fulfill those obligations and to effectively investigate Conn’s discrimination allegations.
[FOOTNOTE 7] Upon consideration we disagree with the Respondent’s argument. We recognize that the Respondent has obligations under other statutes, including the ADA, that may in some circumstances justify the prohibition of certain kinds of speech and conduct. As the Board has previously held, however, any such prohibitions must be narrowly tailored in order to avoid unnecessarily depriving employees of their Section 7 rights.
[FOOTNOTE 8] With one exception, which we discuss below, the Respondent’s prohibitions were not narrowly tailored to meet its ADA concerns. As the judge found, the Respondent prohibited all discussion of Conn’s medical restrictions, even though those restrictions might have adversely affected other employees’ working conditions, and even though some of the employees were considering filing a grievance over the manner in which the Respondent had accommodated the restrictions.
[FOOTNOTE 9] In addition, the Respondent warned employees not to discuss discipline or disciplinary investigations with anyone, again despite the fact that the investigation in question concerned Conn’s ADA com-plaint, which was triggered by their discussions of her medical restrictions. Thus, although the employees had discussed matters that potentially affected their conditions of employment and were actively discussing filing a related grievance, the Respondent attempted to prevent them from discussing those matters entirely, not merely in ways that might be construed as harassing or retaliatory. The Respondent cites no provision of the ADA or its implementing regulations, and we have found none, that even suggests that an employer may announce such sweeping prohibitions on protected activity in the name of ADA compliance. 2. During the course of an investigative interview on April 24, Romano acknowledged to the Respondent’s employee relations administrator, Deanna Duca, and its EEO administrator, Kathy Campbell, that he had discussed Conn’s medical restrictions with supervisor Kendell. Romano said, however, that he had not intended to say anything derogatory about Conn and that he would apologize to her. The supervisors told him not to confront Conn; Campbell testified that she gave that instruction because, in her experience, apologies turn into disputes. About May 1, Romano did attempt to apologize to Conn, but the conversation apparently turned confrontational. The Respondent issued written reprimands to both employees, which stated that, contrary to the Respondent’s instructions, they had discussed issues pertaining to the Respondent’s investigation of Conn’s complaint. Romano’s reprimand also noted that he had attempted to apologize to Conn after having been told not to do so. The judge found that the Respondent’s reprimanding of Conn and Romano for discussing Conn’s complaint violated Section 8(a)(3) and (1) because the discussion was work related and thus protected by Section 7. The Respondent has excepted to this finding, arguing that Romano acted on his own in approaching Conn and that their conversation was therefore not concerted and not protected. We find merit to this exception. As neither Conn nor Romano testified, the record does not indicate the content of their conversation, other than that it started as an attempted apology and degenerated into a confrontation over the general subject of the ADA investigation. There is, however, no evidence that they were talking about wages, hours, or working conditions in a way that might have led to concerted action, or that Romano was attempting to induce Conn to make common cause with him or with other employees regarding work-related matters.
[FOOTNOTE 10] In sum, there is no showing that they were engaged in protected activity in the course of their conversation. We, therefore, find that the Respon-dent did not violate the Act by reprimanding them, and we shall dismiss that allegation of the complaint. 3. On May 1, the Respondent suspended Charging Party Lee Gutierrez for 3 days. Two reasons were given for the suspension. One was that Gutierrez had disobeyed the Respondent’s instructions and talked to other employees about the investigation of Conn’s ADA com-plaint. The other was that he had made threatening remarks to guard Steve Piccioni. Administrator Duca testified that Gutierrez would have been suspended for the threats alone, even without his breach of the confidentiality instruction. On January 30, 1997, Gutierrez was discharged. His discharge notice stated that he was being discharged for leaving the plant premises without permission on January 22, 1997, and after “careful consideration of [his] past work record.” Duca testified that the Respondent took Guttierrez’ entire disciplinary record into account in de-ciding to discharge him, and that Gutierrez probably would not have been discharged solely for leaving the premises without permission. The judge found that both the May 1 suspension and the January 30 discharge of Gutierrez violated Section 8(a)(3) and (1). With regard to the suspension, the judge reasoned that because the Respondent’s restrictions on employee discussions of Conn’s medical restrictions were unlawful, “to the extent that Gutierrez’ 3-day suspension was based on such discussions,” the suspension also violated the Act. With regard to the discharge, the judge implicitly found that the General Counsel had established that Gutierrez’ protected activity was a motivating factor in the Respondent’s decision to terminate him. He also implicitly found that, because it considered Guitierrez’ entire displinary record�including discipline that had been unlawfully imposed�in making that decision, the Respondent had failed to demonstrate that it would have discharged him even if he had not engaged in protected discussions. In its exceptions, the Respondent argues that Duca’s testimony demonstrated that it would have suspended Gutierrez in May for the threats to Piccioni, even absent his discussions which we have found to be protected, and therefore that the suspension was not unlawful.
[FOOTNOTE 11] It further argues that, as a result, it was not unlawful to rely on the suspension in deciding to discharge Gutierrez. It also argues that a “counseling” of Gutierrez on April 24, in which he (like the other Charging Parties) was instructed not to discuss other employees’ medical restrictions, was not discipline and therefore was not part of the disciplinary record relied on in making the decision to terminate him. Accordingly, the Respondent contends that the discharge was lawful because it was not based on any unlawful prior discipline. We find it necessary to remand these two issues to the judge for further consideration. In cases such as this, when an employer is charged with discriminating against an employee in violation of Section 8(a)(3), the burden is on the General Counsel to demonstrate that the employee’s union or other protected activity was a substantial or motivating factor in the employer’s decision. If the General Counsel carries that burden, the burden then shifts to the employer to prove that it would have taken the same action even absent the employee’s protected activity.
[FOOTNOTE 12] The judge failed to apply this analysis with regard to Gutierrez’ May suspension. He found instead that the suspension was unlawful to the extent that it was based on Gutierrez’ protected conversations. That finding is inadequate, however, because while the suspension was based in part on those discussions, it would not be unlawful at all if the Respondent were found to have shown that Gutierrez would have been suspended in any event because of his threats to Piccioni. That is not a finding the Board can make, because it may depend in part on the judge’s evaluation of Duca’s credibility, including his assessment of her demeanor as a witness. We must, therefore, remand this issue to the judge for further analysis under Wright Line. The judge did analyze Gutierrez’ discharge under Wright Line. Thus, he implicitly found that the Respondent had not shown that it would have fired Gutierrez had it not been for his protected activity, because it relied on his entire disciplinary record and the judge found that some of that discipline was unlawful. As we have found, however, the judge did not apply the proper analysis to Gutierrez’ May suspension, and thus it has not yet been determined whether the suspension was unlawful under Wright Line. The General Counsel argues that, in any event, Gutierrez’ April 24 counseling for “inappropriate comments and behavior” constituted unlawful discipline. The Respondent contends, however, that, as both Duca and Campbell testified, it did not consider the counseling to be discipline at all, and that, for that reason, Duca did not consider it part of Gutierrez’ disciplinary record when deciding to discharge him. The judge did not discuss that testimony, the validity of which again depends in part on the judge’s assessment of the witnesses’ credibility. Moreover, the April 24 counseling of Gutierrez was not alleged in the complaint to be unlawful discipline, and it is not clear whether the judge found it to be so, although there are indications in his decision that he did. For one thing, he included the counseling along with the May suspension among the items of discipline considered by the Respondent in making the discharge decision, while omitting any mention of the other, lawful, instances of discipline. The judge also, in his recommended Order, referred to the unlawful reprimands of Gutierrez, which presumably included the April 24 counseling.
[FOOTNOTE 13] However, we cannot determine with certainty whether he based his finding that Gutierrez’ discharge was unlawful in part on the April 24 counseling. Since the May suspension and the April counseling are the only arguably unlawful instances of discipline meted out to Gutierrez, we cannot determine at this time whether the judge correctly found that he was unlawfully terminated.
[FOOTNOTE 14] We shall, therefore, sever the complaint allegations relating to Gutierrez’ May suspension and January, 1997 discharge and remand them to the judge for further findings and analysis of the issues discussed above. ORDER The National Labor Relations Board orders that the Respondent, Lockheed Martin Astronautics, Littleton, Colorado, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Warning employees to refrain from discussing the potential effects of other employees’ medical restrictions on their working conditions. (b) Promulgating and maintaining a rule prohibiting employees from discussing employee discipline and disciplinary investigations with anyone. (c) Warning and reprimanding employees because they discussed matters that may be grievable under their collective- bargaining agreement or because they engaged in any other union or protected concerted activity. (d) Telling union representatives to shut up during the course of investigatory interviews with employees. (e) Coercively interrogating employees concerning their union or other protected concerted activities. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind its rule prohibiting employees from discussing employee discipline and disciplinary investigations with anyone. (b) Within 14 days from the date of this Order, remove from its files any reference to the unlawful warning of Anthony Romano and the unlawful reprimand of Joseph Fiala, and within 3 days thereafter notify the employees in writing that this has been done and that the actions will not be used against them in any way. (c) Within 14 days after service by the Region, post at its Littleton, Colorado facility copies of the attached notice marked “Appendix.”
[FOOTNOTE 15] Copies of the notice, on forms provided by the Regional Director for Region 27, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since April 11, 1996. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint allegations that the Respondent violated Section 8(a)(3) and (1) by suspending Lee Gutierrez in May 1996 and by discharging him on January 30, 1997, are severed and remanded to the administrative law judge for consideration of the matters discussed in part 3, above. IT IS FURTHER ORDERED that the judge shall make the credibility determinations and factual findings necessary to resolve those issues, and that he shall prepare and serve on the parties a supplemental decision setting forth those determinations and findings, conclusions of law, and a recommended Order based on those determinations, findings, and conclusions. Following service of the supplemental decision on the parties, the provisions of Section 102.46 of the Board’s Rules and Regulations shall be applicable. Dated, Washington, D.C. January 6, 2000 John C. Truesdale, Chairman Sarah M. Fox, Member Wilma B. Liebman, Member (SEAL) NATIONAL LABOR RELATIONS BOARD (APPENDIX OMMITTED) :::FOOTNOTES:::
FN1 We grant the Respondent’s motion to amend its exceptions.
FN2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The judge recommended that several complaint allegations be dismissed. No exceptions were filed to the recommended dismissals. We correct several erroneous or misleading statements by the judge, none of which are material to our decision. Contrary to the judge, witness Rick Hernandez testified that at an investigative interview on April 24, 1996, Charging Party Anthony Romano denied having discussed employee Jolene Conn’s medical conditions, not her medical restrictions (i.e., her work limitations resulting from her medical conditions). Also, although the judge’s finding that neither Romano nor Hernandez was aware of the purpose of that meeting is supported by a portion of Hernandez’ testimony, Hernandez also testified that, when Romano was asked if he knew why he was at the meeting, he replied that he had heard a rumor that someone had made allegations against him. Finally, although Hernandez testified that Romano was concerned over the safety implications of Conn’s inability to carry a sidearm, he did not, contrary to the judge, testify that Romano informed his supervisor, Jerry Kendell, of that concern. However, it is clear that Romano, like other employees, was discussing Conn’s medical restrictions as they related to the employees’ working conditions. Thus, whether or not he informed Kendell of the basis for his concerns is irrelevant.
FN3 The judge inadvertently failed to provide a remedy for supervisor Kendell’s unlawful instruction to employees to refrain from discussing the effect of employee Jolene Conn’s medical restrictions on their working conditions. We shall add the appropriate provisions to the recommended Order and notice. We shall also modify the Order consistent with the Board’s decision in Excel Container, Inc., 325 NLRB 17 (1997).
FN4 All dates refer to February 1996 through January 1997.
FN5 The term “medical condition” refers to Conn’s physical problems; the term “medical restrictions” refers to the kinds of work she was unable to do because of her medical conditions.
FN6 42 U.S.C.A. � 12101 et seq.
FN7 The Respondent argues that the judge erroneously stated that it im-posed its confidentiality requirement in order to avoid conflict. Even if the judge inaccurately suggested that conflict avoidance was the only reason for the requirement, his error was harmless, because the Respondent’s other stated reasons for the requirement are not sufficient to justify the infringement of protected Sec. 7 rights. The Respondent’s contention that its restrictions were necessary to preserve the confidentiality of medical information is particularly unpersuasive. As the judge found, the issues in this case arose when Conn herself informed Charging Party Joseph Fiala about her medical restrictions and Charging Party Lee Gutierrez about her medical condition.
FN8 Handicabs, Inc., 318 NLRB 890, 896 (1995), enfd. 95 F.3d 681 (8th Cir. 1996), cert. denied 117 S.Ct. 2508 (1997).
FN9 Contrary to the Respondent, it is irrelevant whether the employees’ concerns over the effects of Conn’s medical restrictions were well-founded or that they did not file a grievance over those matters. What is relevant is that the employees were discussing both the potential effects of her restrictions on their working conditions and the possibility of filing a related grievance. Such conversations are concerted activity protected by Sec. 7, Medeco Security Locks, 319 NLRB 224, 228 (1995), affd. 322 NLRB 664 (1996), enfd. in relevant part 142 F.3d 733 (4th Cir. 1998), whether or not they result in organized action. See Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964).
FN10 Cf. Meyers Industries, 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
FN11 Wright Line, 251 NLRB 1083 (1980). The Respondent did not separately except to the judge’s finding that the May suspension was unlawful, but it clearly argues to that effect in support of its exceptions.
FN12 Id. at 1089.
FN13 In their briefs, the parties seem to assume that the judge did find the April 24 counseling unlawful.
FN14 The General Counsel argues that because Gutierrez’ discharge was based in part on his May suspension, it was therefore unlawful even if the suspension was not unlawful. The General Counsel reasons that, because the Respondent took the suspension into account in discharging Gutierrez, and because the suspension was imposed in part because of his protected discussions, it follows that the discharge was motivated in part by those discussions. This argument can be considered by the judge on remand, if necessary.
FN15 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.”
Lockheed Martin Astronautics and Joseph Fiala, et al. Lockheed Martin Astronautics and Joseph F. Fiala and Anthony H. Romano and Lee Gutierrez. Cases 27�CA�14557, 27�CA�14600, 27�CA�14605, and 27�CA�15118 January 6, 2000 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND LIEBMAN
