Central States Southeast and Southwest Areas, Health & Welfare and Pension Funds

National Labor Relations Board - Board Decisions

Aug 4, 2015

362 NLRB No. 155 (N.L.R.B. 2015)

362 NLRB No. 155
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Central States Southeast and Southwest Areas,
Health & Welfare and Pension Funds and Local
743, International Brotherhood of Teamsters.
13–CA–117018
August 4, 2015
DECISION AND ORDER
BY MEMBERS HIROZAWA, JOHNSON, AND MCFERRAN
On June 5, 2014, Administrative Law Judge Arthur J.
Amchan issued the attached decision. The General
Counsel filed exceptions and a supporting brief. The
Respondent filed an answering brief, and the General
Counsel 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, and conclusions1
only to the extent consistent with this Decision and Or-
der.
This case centers on an employer’s reaction to an em-
ployee’s act of posting a written disciplinary warning.
Specifically, the General Counsel alleged that the Re-
spondent violated Section 8(a)(1) of the Act by threaten-
ing employee Frederick Allen Moss with a 3-day suspen-
sion unless he removed a written disciplinary warning
that he had posted in his work area. The General Coun-
sel further alleged that this conduct separately violated
Section 8(a)(1) inasmuch as the Respondent orally
promulgated an unlawful work rule of general applica-
tion. The judge declined to find either alleged violation
and dismissed the complaint. We reverse the judge and
find both violations for the following reasons.
I. FACTS
The Respondent administers the health, welfare, and
pension plans for various employers. For the past 21
years, Moss has worked in the Respondent’s call-in cen-
ter, where he answers telephone inquiries by fund partic-
ipants. Department Manager Cynthia McGinnis has su-
pervised Moss for the past 7 years. The parties stipulated
that McGinnis is both a statutory supervisor and an agent
of the Respondent.
During a meeting on June 12, 2013,2 Moss apparently
failed to stop using a tablet (or similar electronic device)

1 We have amended the judge’s Conclusions of Law consistent with
our findings here.
2 All dates refer to 2013 unless otherwise indicated.
when McGinnis told him to do so. On June 13, McGin-
nis held a disciplinary meeting with Moss, Union Stew-
ard Rick Delgado, and another supervisor. At this meet-
ing, McGinnis issued Moss a written warning based sole-
ly on Moss’s alleged failure to comply with her directive
to put his tablet away. Immediately after this meeting,
Moss discussed the warning with Delgado, and, the fol-
lowing day, Moss showed the warning to several other
employees. Thereafter, he laminated the written warning
and posted it in his cubicle, next to his computer. The
laminated warning was visible to other employees enter-
ing his cubicle or standing at the entry to the cubicle.
The Union filed a grievance concerning the warning on
July 2.3
The Respondent and the Union held a grievance hear-
ing on August 15 concerning the July 2 grievance. In
attendance were Director of Participant and Field Ser-
vices William Schaefer, Director of Human Resources
Scott Robbins, and McGinnis, as well as Moss, Union
Business Agent Catherine Schutzius, and four union
stewards (including Delgado). During the grievance
hearing, McGinnis complained that Moss was being dis-
respectful and insubordinate to her by posting the written
disciplinary warning. Schaefer interjected and told Moss
that if he did not remove the warning from where he
posted it, then Schaefer would suspend Moss for 3 days.
The Union advised Moss to comply with Schaefer’s de-
mand. Moss went to his cubicle and took down the writ-
ten warning.
II. ANALYSIS
A. The Threat to Discipline Moss
As the Supreme Court has stated, the Board has long
“recognized the importance of freedom of communica-
tion to the free exercise of organization rights.” Central
Hardware Co. v. NLRB, 407 U.S. 539, 543 (1972) (cita-
tions omitted); see also Westside Community Mental
Health Center, 327 NLRB 661, 666 (1999) (quoting
Central Hardware and finding unlawful an overbroad
confidentiality rule prohibiting employees from discuss-
ing their discipline with coworkers). Following from this
principle, the Board has found that “[i]t is important that
employees be permitted to communicate the circum-
stances of their discipline to their coworkers so that their
colleagues are aware of the nature of discipline being
imposed, how they might avoid such discipline, and mat-
ters which could be raised in their own defense.” Phil-
lips Electronics North America Corp., 361 NLRB No.
16, slip op. at 2 (2014) (quoting Verizon Wireless, 349

3 The parties stipulated to this date, and the grievance itself is dated
July 2. Therefore, we conclude that the judge erred in finding that the
grievance was filed on June 13.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB 640, 658 (2007) (finding 8(a)(1) violation where
employer created overbroad rule by prohibiting an em-
ployee from speaking with coworkers about a written
disciplinary warning under pain of further discipline or
discharge)). As a result, the Board has consistently held
that “[a]n employer violates Section 8(a)(1) when it pro-
hibits employees from speaking with coworkers about
discipline and other terms and conditions of employment
absent a legitimate and substantial business justifica-
tion.” Phillips Electronics, 361 NLRB No. 16, slip op. at
2 (citing Lucky Cab Co., 360 NLRB No. 43, slip op. at 7
(2014); SNE Enterprises, 347 NLRB 472, 491–492
(2006), enfd. 257 Fed.Appx. 642 (4th Cir. 2007); Cae-
sar’s Palace, 336 NLRB 271, 272 (2001)). Where an
employer asserts a legitimate and substantial business
justification, the Board then considers whether employ-
ees’ interests in exercising their Section 7 rights out-
weigh the employer’s asserted justification. Caesar’s
Palace, 336 NLRB at 272.
In the instant case, the Respondent issued a written
disciplinary warning to Moss, who then grieved it, shared
it with his coworkers, and discussed it with them. He
also posted the warning. The judge found, in agreement
with the Respondent, that the posting was neither pro-
tected nor concerted whether viewed in isolation or in
conjunction with Moss’ grievance and prior discussion
with other employees. We need not decide whether the
posting of a disciplinary warning, standing alone, would
in other circumstances constitute protected concerted
activity. Here, it is clear that the posting of the warning
was related to other means of communicating with other
employees about it. In accord with the above-mentioned
precedent, prohibition of the discussion of discipline rea-
sonably tends to interfere with the exercise of protected
Section 7 rights and is therefore unlawful unless out-
weighed by a legitimate and substantial business justifi-
cation.4

4 The Respondent contends that the General Counsel failed to raise
before the judge, and therefore waived, the argument that the threat to
Moss violated Sec. 8(a)(1) without regard to whether his posting of the
warning was protected concerted activity. Although the complaint
alleges that Moss engaged in protected concerted activity by posting his
written warning and that the Respondent unlawfully threatened him
with suspension because of that conduct, the complaint’s language is
broad enough to encompass a finding that the threat premised on the
activity of posting the warning was unlawful even if not concerted.
Further, the General Counsel clearly delineated the separate theories in
his posthearing brief to the judge, arguing that the threat to Moss
“served as an unlawful restriction on the right of an employee to com-
municate about disciplinary matters, which cannot be disturbed absent a
legitimate and substantial business justification,” before separately
contending that the Respondent had “threatened to discipline Moss for
engaging in protected concerted activity.” Furthermore, “[i]t is well
settled that the Board may find and remedy a violation even in the
absence of a specified allegation in the complaint if the issue is closely
The Respondent asserts that it had a legitimate and
substantial business justification for requiring Moss to
remove his posted warning, namely “removing open dis-
plays of insubordination because such displays are dis-
ruptive and undermine management’s authority.” The
Respondent argues that this justification outweighed
Moss’s Section 7 rights because he continued openly
discussing his discipline with coworkers, demonstrating
“exceedingly minimal” interference with those rights. In
other words, the Respondent effectively contends that by
labeling certain conduct as insubordination, it has the
right to pick and choose the means by which Moss and
coworkers could communicate about his discipline. We
disagree, and more to the point, we find that the Re-
spondent has provided no factual basis for deeming the
posting to be truly insubordinate. Accordingly, we con-
clude that the Respondent unlawfully threatened Moss.
B. The Oral Promulgation of an Unlawful Work Rule
The judge found that the Respondent “did not promul-
gate a rule of general applicability” when Schaefer in-
structed Moss to take down his posted disciplinary warn-
ing, under threat of suspension, in the presence of four
employee stewards.5 Relying on Teachers AFT New
Mexico, 360 NLRB No. 59, slip op. at 1 fn. 3 (2014), the
judge determined that the instruction to remove the post-
ing “was directed solely to Moss” and that “[t]here is no
reason to believe that anyone understood either objec-
tively or subjectively that Schaefer’s statements were
applicable to anyone other than Moss” or to any situation
other than Moss’s posting. In Teachers AFT New Mexi-
co, the Board concluded that no work rule was orally
promulgated based on certain statements because the
record did not show that those statements “were commu-
nicated to any other employees or would reasonably be
construed as establishing a new rule or policy for all em-
ployees.” Id. (citations omitted).
Here, the direction to Moss to remove his posting was
communicated in the presence of four employee stew-

connected to the subject matter of the complaint and has been fully
litigated.” Pergament United Sales, 296 NLRB 333, 334 (1989), enfd.
920 F.2d 130 (2d Cir. 1990). Here, the allegations are undoubtedly
closely connected as they turn on precisely the same facts. Nor is there
support for a finding that the issues were not fully litigated; indeed, the
Respondent does not contend that it would have presented its case any
differently with the benefit of additional notice of the General Coun-
sel’s legal theory. We find, therefore, that the General Counsel’s ar-
gument was timely raised and not waived.
5 The Respondent’s contention that the parties’ stipulation—“Central
States does not maintain any policy or rule, written or otherwise, re-
garding posting of disciplinary notices.”—precludes finding a work-
rule violation is without merit. The judge did not interpret the stipula-
tion to defeat the work-rule complaint allegation, and the Respondent
did not except to this interpretation. In fact, the Respondent filed no
exceptions in this case.
CENTRAL STATES SOUTHEAST AND SOUTHWEST AREAS, HEALTH & WELFARE AND PENSION FUNDS 3
ards, and, as Schaefer acknowledged, “there was some
discussion in the room with the union stewards about . . .
whether he [Moss] needed to bring that [the posted warn-
ing] down or not.”6 The stewards would reasonably as-
sume from this discussion that, implicit in Schaefer’s
instruction to Moss, was a warning that the Respondent
would react similarly were another employee to post
written discipline. Indeed, during the hearing before the
judge, Schaefer admitted his “view” that Moss’s warning
“should not be posted because it is a private matter be-
tween the employee and the manager.”7 Accordingly, the
Respondent’s threat to Moss was “communicated to . . .
other employees” and “would reasonably be construed as
establishing a new rule or policy for all employees.” See
Teachers AFT New Mexico, 360 NRLB No. 59, slip op.
at 1 fn. 3. Under the circumstances of this case, we
therefore conclude that the Respondent effectively prom-
ulgated an unlawful rule prohibiting employees from
discussing their discipline through the physical posting
of such discipline.8
III. AMENDED CONCLUSIONS OF LAW
Delete the Conclusions of Law in the judge’s decision
and substitute the following.
“1. The Respondent violated Section 8(a)(1) of the Act
by ordering Frederick Allen Moss to take down his post-
ed disciplinary warning under threat of suspension.”
“2. The Respondent violated Section 8(a)(1) of the Act
by orally promulgating an unlawful rule prohibiting em-
ployees from posting, in their work area, written discipli-
nary warnings issued to them by the Respondent.”
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has orally promulgated an
unlawful work rule prohibiting employees from posting,
in their work area, written disciplinary warnings the Re-
spondent issued to them, we shall order the Respondent
to rescind that rule.

6 Tr. 71.
7 Tr. 76.
8 Member Johnson would affirm the judge’s dismissal of the work-
rule allegation. In his view, Schaefer’s testimony that there was “some
discussion” among the stewards regarding whether Moss needed to
remove his posted disciplinary warning is vague and does not justify
the conclusion that the Board reaches. Rather, this testimony demon-
strates, at most, that the stewards were advocating for Moss’s Sec. 7
right to post his disciplinary warning under the circumstances present in
this case. Given that Schaefer directed his removal instruction solely to
Moss and referred only to Moss’s specific posting, there is insufficient
evidence to conclude that employees would reasonably construe the
instruction as the promulgation of a general rule.
ORDER
The National Labor Relations Board orders that the
Respondent, Central States Southeast and Southwest
Areas, Health & Welfare and Pension Funds, Chicago,
Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discipline if they re-
fuse to remove postings of prior written discipline re-
ceived from the Respondent.
(b) Promulgating or maintaining a rule prohibiting em-
ployees from posting, in their work area, written discipli-
nary warnings issued to them by the Respondent.
(c) In any like or related manner interfering with, re-
straining, 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 the rule prohibiting employees from post-
ing, in their work area, written disciplinary warnings
issued to them by the Respondent.
(b) Within 14 days after service by the Region, post at
its Chicago, Illinois facility copies of the attached notice
marked “Appendix.”9 Copies of the notice, on forms
provided by the Regional Director for Region 13, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, 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 August 15, 2013.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 13 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dated, Washington, D.C. August 4, 2015
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Harry I. Johnson, III, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten you with discipline if you re-
fuse to remove postings of prior written discipline re-
ceived from us.
WE WILL NOT issue or maintain a rule prohibiting you
from posting, in your work area, written disciplinary
warnings issued to you.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the rule prohibiting employees from
posting, in their work area, written disciplinary warnings
issued to them.
CENTRAL STATES SOUTHEAST AND SOUTHWEST
AREAS, HEALTH & WELFARE AND PENSION
FUNDS
The Board’s decision can be found at
www.nlrb.gov/case/13-CA-117018 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.
Jason Patterson, Esq. for the General Counsel.
Albert M. Madden and Andrew J. Herink, Esqs., for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Chicago, Illinois, on April 22, 2014. Teamsters
Local 743 filed the charge in this matter on November 14,
2013. The General Counsel issued the complaint on February
18, 2014.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent administers the health, welfare and pensions
plans of various employers, including United Parcel Service.
Respondent provides services in excess of $50,000 to employ-
ers who were directly engaged in interstate commerce. Re-
spondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by threatening employee Frederick Allen
Moss with a 3-day suspension unless he removed a written
disciplinary warning that Moss had posted in his work area. It
also alleges that by Respondent violated Section 8(a)(1) by
promulgating a rule prohibiting employees from posting written
disciplinary warnings in their work area.
Frederick Allen Moss has worked in Respondent’s call-in
center for 21 years. His job is to answer inquiries by fund par-
ticipants. For the last 7 years Cynthia McGinnis has supervised
Moss. McGinnis considers Moss to be a marginal employee at
best.
During a meeting for a group of employees on June 12,
2013, Moss apparently used a tablet (electronic device) and
failed to stop using it when McGinnis told him to do so. On
June 13, 2013, McGinnis held a meeting with Moss and Union
Steward Richard Delgado. At this meeting she issued Moss a
CENTRAL STATES SOUTHEAST AND SOUTHWEST AREAS, HEALTH & WELFARE AND PENSION FUNDS 5
written warning for insubordination for failing to put away the
tablet the day before. Immediately after the meeting Moss
discussed the warning with union steward Delgado. The Union
filed a grievance concerning the warning on June 13.
On June 14, Moss showed the warning to several other em-
ployees. Then he laminated the written warning and posted it
in his cubicle, next to his computer. The laminated warning
was visible to other employees entering his cubicle or standing
at the entry to the cubicle. He also at this time, or previously,
posted his quarterly production statistics, which included a note
from McGinnis critical of his performance.
At a grievance meeting on August 15, 2013, McGinnis com-
plained that Moss was being disrespectful and insubordinate to
her by posting the written disciplinary warning. William
Schaefer, the Group Director of Respondent’s participant ser-
vices, told Moss that if he did not remove the warning from
where he posted it, he would suspend Moss for 3 days. The
Union advised Moss to comply with Schaefer’s demand. Moss
went to his cubicle and took down the warning notice.
Analysis
Section 8(a)(1) provides that it is an unfair labor practice to
interfere with, restrain or coerce employees in the exercise of
the rights guaranteed in Section 7. Section 7 provides that,
“employees 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 concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection . . . (Emphasis added).”
In Myers Industries (Myers 1), 268 NLRB 493 (1984), and in
Myers Industries (Myers 11) 281 NLRB 882 (1986), the Board
held that “concerted activities” protected by Section 7 are those
“engaged in with or on the authority of other employees, and
not solely by and on behalf of the employee himself.” Howev-
er, the activities of a single employee in enlisting the support of
fellow employees in mutual aid and protection is as much con-
certed activity as is ordinary group activity.
Individual action is concerted so long as it is engaged in with
the object of initiating or inducing group action, Whittaker
Corp., 289 NLRB 933 (1988); Mushroom Transportation Co.,
330 F.2d 683, 685 (3d Cir. 1964). The object of inducing group
action need not be express.
Additionally, the Board held in Amelio’s, 301 NLRB 182
(1991), that in order to present a prima facie case that an em-
ployer has disciplined or discharged an employee in violation
of Section 8(a)(1), the General Counsel must establish that the
employer knew of the concerted nature of the activity.
I conclude that Moss did not engage in protected concerted
activity by posting his written disciplinary warning. First of all,
Moss was not enlisting the support of his fellow employees and
was not posting his disciplinary action with a view of inducing
group action. The Union had already filed a grievance on his
behalf when he posted the warning. There is no evidence that
Moss was soliciting support for his grievance by posting the
warning.
The General Counsel contends that Moss’ posting of the
warning was a “logical outgrowth” of the filing of the griev-
ance. I disagree. There is no evidence that Moss was seeking
the support of other employees in the grievance procedure, or
that posting the warning advanced his cause in the grievance
process in any way. Moss did not post the grievance; thus I
conclude that the relationship between filing the grievance and
posting the warning is tenuous at best.
Unlike the employees in the cases cited by the General
Counsel at page 6 of his brief, Moss was not posting his warn-
ing to support any union activity. For example, this case is
distinguishable from Lucky Cab Co., 360 NLRB No. 43 (2014),
slip opinion pages 3–4, and 7, in that employee Geberselasa,
unlike Moss, had clearly engaged in protected union activity
before being told not to discuss her discharge.
The fact that several employees may have asked Moss about
his written warning and that he showed it to them does not
mean that he was initiating or inducing group action. There is
no evidence in this record, for example, that any other employ-
ees wanted the freedom to use their electronic devices in busi-
ness meetings. There is also no evidence that Moss was seek-
ing the support of other employees to protest unfair disciplinary
practices in general. The subject matter of Moss’ posting was a
matter that concerned only Moss.
I further conclude that Moss’ discipline did not become a
matter of common concern simply because the Union filed a
grievance about it. The grievance (Jt. Exh. 2), cites Section 2
of the collective-bargaining agreement, the nondiscrimination
provision, as the basis for the grievance. This is no evidence
that the Union claimed that Moss was disciplined in a discrimi-
natory matter. I assume it grieved the warning on the theory
that it was administered “without just cause.” Thus, I conclude
that the grievance was simply processed on the theory that
Moss’ conduct, which only concerned himself, was insufficient
to warrant a written warning.
Moss testified that he posted his warning because “a lot of
people had come over asking about it.” McGinnis believes he
did so to mock her. Even assuming that Moss posted the warn-
ing in response to the inquiries of other employees, there is no
evidence that their inquiries were motivated by anything other
than idle curiosity. There is no evidence that they sought to
make common cause with Moss about anything, or that he was
seeking their support for any matter of common concern.
The General Counsel at page 8 of his brief also cites
Westside Community Mental Health Center, 327 NLRB 661,
666 (1999), for the proposition that Respondent’s threat to
Moss inhibited “other employees to obtain information that
could prove useful in challenging discipline they may facing.”
The Board’s concern in that case was inhibiting the disciplined
employees from obtaining such information, rather than inhibit-
ing other employees from obtaining information to defend
themselves in other disciplinary situations. Regardless, either
rationale is inapplicable to this case. Moss’ posting neither
could assist him in defending himself nor have assisted other
employees in defending themselves in disciplinary situations
that might arise in the future.
Respondent did not violate the Act in promulgating an
unlawful work rule
The General Counsel relies heavily on Verizon Wireless, 349
NLRB 640, 658–659 (2007), in arguing that Respondent prom-
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ulgated an unlawful work rule by telling Moss to take down his
laminated warning or face suspension. That case is distin-
guishable in that the discipline involved in that case was im-
posed for protected activity. Moreover, I find that Respondent
did not promulgate a rule of general applicability. Its admoni-
tion was directed solely to Moss. A statement directed at only
one employee cannot generally be considered to constitute the
promulgation of a work rule, American Federation of Teachers
New Mexico, 360 NLRB No. 59 fn. 3 (2014). The only other
employees present when Schaefer threatened Moss were four
union stewards. Their presence at the grievance meeting does
not turn Schaefer’s statement into a work rule. There is no
reason to believe that anyone understood either objectively or
subjectively that Schaefer’s statements were applicable to any-
one other than Moss, or applied to any situation other than the
particular written warning Moss received on June 13. There is
no evidence that Schaefer’s alleged rule was disseminated to
employees, other than those at the August 15 meeting, either by
Respondent or by the Charging Party Union.
This is a case that should never have been litigated. Re-
spondent overreacted to Moss’ conduct. It is hard to under-
stand how Respondent considered Moss’ posting the warning to
be disrespectful or harassment of McGinnis. The warning, if
anything, reflected poorly on Moss, not McGinnis. Moss’ con-
duct did not warrant the threat of a 3-day suspension. However,
the Union should not have filed the charge and the General
Counsel should not have issued the complaint. Moss’ conduct
is so remotely related to the rights protected by the Act, that
Respondent’s reaction to it is something with which the Board
should not be concerned. As the Board stated in a somewhat
different context in American Federation of Musicians, Local
76 (Jimmy Wakely Show), 202 NLRB 620, 621 (1973):
The Board’s rising case load and the problems involved in
handling it could be alleviated if cases of this type were not
processed.
CONCLUSIONS OF LAW
Frederick Moss did not engage in protected concerted activi-
ty by posting his written disciplinary warning in his office.
Respondent did not violate Section 8(a)(1) in threatening
Moss with a three-day suspension if he did not take the warning
down.
Respondent did not violate the Act in promulgating an un-
lawful work rule.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The complaint is dismissed.

1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.