The Boeing Company

National Labor Relations Board - Board Decisions

Aug 27, 2015

362 NLRB No. 195 (N.L.R.B. 2015)

362 NLRB No. 195
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.
The Boeing Company and Joanna Gamble. Case 19–
CA–089374
August 27, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On July 26, 2013, Administrative Law Judge Jeffrey
D. Wedekind issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent 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 exceptions1 and briefs and has decided to

1 On August 21, 2015, the Respondent submitted to the Executive
Secretary a document which it described as a “Letter of Supplemental
Authority to alert the Board to a recent decision [that further supports
its exceptions and its brief in support of its exceptions]”, citing S.W.
General, Inc. v. NLRB, No. 14-1107, 2015 WL 4666487 (D.C. Cir.
Aug. 7, 2015). In S.W. General, the U.S. Court of Appeals for the
District of Columbia Circuit held that Acting General Counsel Lafe
Solomon was qualified to serve in that capacity under the Federal Va-
cancies Reform Act of 1998 (FVRA), 5 U.S.C. §§ 3345, et seq., and
that he validly served as the Acting General Counsel at the direction of
the President beginning June 21, 2010. The court further held that
Solomon’s authority as the Acting General Counsel ceased on January
5, 2011, when the President nominated him for the position of the Gen-
eral Counsel.
Contrary to the Respondent’s suggestion, S.W. General does not ad-
dress any issue the Respondent previously raised in this matter, by
exceptions or otherwise. Accordingly, we reject the Respondent’s
August 21 letter as an untimely effort to file additional exceptions.
As an initial matter, there is no evidence that the Respondent raised
any question regarding the authority of the Acting General Counsel or
raised any related challenges during the Region’s investigation of the
charge in this matter. Nor does the Respondent’s answer to the com-
plaint raise any question about the authority of the Acting General
Counsel or those who operate in his behalf. Indeed, on June 6, 2013,
the Respondent and counsel for the Acting General Counsel filed a
Joint Motion and Stipulation of Facts in which they waived a hearing in
this matter and authorized the administrative law judge (ALJ) to issue a
decision based on the stipulated record. Notably, this joint motion
listed only three issues in dispute, none of which related to the authority
of the Acting General Counsel or the Region to prosecute this case.
See Jt. Mot., pp. 8–9.
On June 7, 2013, the judge issued an order granting the joint motion,
approved the stipulation, and directed that briefs should be filed no later
than July 11, 2013. On July 11, 2013, the Respondent filed a 20-page
brief with the ALJ in which it made a passing reference that “the Com-
plaint is ultra vires, and the Board and its agents lack legal authority to
prosecute, hear, or decide this matter” (citations omitted). R. Br. on
Stip. Rec. at 5–6. In a footnote, the Respondent explained that it was
raising a jurisdictional question based upon the argument that the Board

lacked a quorum. The Respondent went on to state, again without
elaboration,
[That in the absence of a Board quorum] the appointment of the Re-
gional Director for Region 19 and the issuance of the Complaint in
this case are void, the prosecution of this case by counsel for the Act-
ing General Counsel is unlawful, the Administrative Law Judge lacks
lawful authority to hear or decide this case, and any decision that may
be issued in this case will be void ab initio.
R. Br. on Stip. Rec. at 6 fn. 2.
On July 26, 2013, the judge issued a decision in which he rejected
the Respondent’s jurisdictional argument “that ‘the complaint is ultra
vires’ and may not lawfully be processed due to the lack of a valid
Board quorum” (citations omitted). JD slip op. at 2 fn. 3. The judge
further found that the Respondent violated the Act as alleged in the
complaint.
On August 23, 2013, the Respondent filed exceptions to the judge’s
decision. The Respondent listed 23 separate exceptions (not including
subparts), only 1 of which addressed its “jurisdictional argument.”
Exception 1 reads as follows:
[To the judge’s] Finding that the Complaint in this case is not ultra
vires and may be lawfully processed notwithstanding the National La-
bor Relations Board’s lack of a valid quorum. Decision at 2 n.3. This
finding is actually a conclusion and is contrary to law.
In its brief in support of its exceptions, the Respondent reiterated the
“lack of quorum” argument it presented to the judge, citing two addi-
tional cases—NLRB v. Enterprise Leasing Co. Southeast, LLC, 722
F.3d 609 (4th Cir. 2013); and Hooks v. Kitsap Tenant Support Ser-
vices., Inc., C13-5470 BHS, 2013 WL 4094344 (W.D. Wash. Aug. 13,
2013). The Respondent did not indicate why it cited Enterprise Leas-
ing, but it cited Kitsap for the proposition that the “Acting General
Counsel was not validly appointed,” and therefore he “lacked inde-
pendent authority.” The Respondent did not further elaborate on its
argument, if any, regarding Kitsap. R. Br. in Support of Exceptions at
24–25. The counsel for the General Counsel filed an answering brief in
which it addressed the “lack of quorum” argument, and the Respondent
filed a reply brief in which it simply stated:
As a final matter, Boeing submits that the Complaint was ultra vires
and the Board’s agents lacked legal authority to prosecute, hear, or de-
cide this case. The Acting General Counsel relies on cases that disa-
gree with Noel Canning v. NLRB, 705 F.3d 490, 499–514 (D.C. Cir.),
cert. granted, 133 S. Ct. 2861 (June 24, 2013), and its progeny. These
differences will be resolved by the federal courts.
R. Reply Br. at 6.
As demonstrated above, the Respondent did not cite or refer to the
FVRA. Nor did it elaborate in any way on its reference to the quote
from Kitsap that the “Acting General Counsel was not validly appoint-
ed,” which we note is directly contrary to the rationale of S.W. General.
Indeed, in its final brief to the Board, the Respondent did not make any
reference to Kitsap. Thus, we find that the Respondent has waived its
right to challenge the authority of the Acting General Counsel to prose-
cute this case under the rationale of S.W. General. Not only did the
Respondent fail to raise this argument in its answer or other pleadings,
it entered into a stipulation that there were only three issues in dispute,
none of which questioned the authority of the Acting General Counsel
and those acting on his behalf. Under these circumstances, the Re-
spondent’s August 21, 2015 letter, submitted nearly 2 years after the
time for filing exceptions, is simply too little too late.
Finally, on August 27, 2015, General Counsel Richard F. Griffin, Jr.,
issued a Notice of Ratification which states, in relevant part,
I was confirmed as General Counsel on November 4, 2013. After ap-
propriate review and consultation with my staff, I have decided that
the issuance of the complaint in this case and its continued prosecution
are a proper exercise of the General Counsel’s broad and unreviewa-
ble discretion under section 3(d) of the Act.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
affirm the judge’s rulings, findings,2 and conclusions3
and to adopt the recommended Order.4
1. Prior to November 2012, the Respondent maintained
and routinely distributed to all employees involved in
human resources investigations a confidentiality notice
that stated, in relevant part:
Human Resources investigations deal with sensi-
tive information and may be conducted under au-
thorization of the Boeing Law Department. Because
of the sensitive nature of such information, you are
directed not to discuss this case with any Boeing
employee other than company employees who are
investigating this issue or your union representative,
if applicable. Doing so could impede the investiga-
tion and/or divulge confidential information to other
employees.
As a participant in the investigation, the infor-
mation you provide will be treated in a sensitive
manner, however the Investigator will not promise
absolute confidentiality. Information regarding the
investigation may be disclosed to person(s) on a
need to know basis.
Please contact the investigator if you have any
questions in this matter. If any coworker or manager
asks to discuss the case with you, please inform him

My action does not reflect an agreement with the appellate court rul-
ing in S.W. General. Rather, my ratification authorizes the continued
prosecution of this matter and facilitates the timely resolution of the
charges that I have found meritorious. Congress expressly exempted
“the General Counsel of the National Labor Relations Board” from
the FVRA provisions that would otherwise preclude the ratification of
certain actions of other persons found to have served in violation of
the FVRA. (Citation omitted.)
For the foregoing reasons, I hereby ratify the issuance and continued
prosecution of the complaint.
Thus, even assuming that the Respondent had not previously waived
its right to challenge the authority of the Acting General Counsel under
the FVRA, this ratification renders moot any argument that S.W. Gen-
eral precludes further litigation in this matter.
2 In adopting the judge’s findings of violations, we do not rely on his
citations to Banner Estrella Medical Center, 358 NLRB No. 93 (2012),
and Fresenius USA Mfg., 358 NLRB No. 138 (2012). We rely instead
on Banner Estrella Medical Center, 362 NLRB No. 137 (2015), and
Fresenius USA Mfg., 362 NLRB No. 130 (2015). In addition, we do
not rely on Taylor Made Transportation Services, 358 NLRB No. 53
(2012).
3 Even assuming it was timely raised, we find no merit in the Re-
spondent’s contention that the Acting General Counsel lacked the au-
thority to prosecute this case because the Board lacked a quorum.
Newark Electric Corp., 362 NLRB No. 44, slip op. at 1 fn. 1 (2015).
We also reject the Respondent’s contention that the appointment of
Ronald K. Hooks as Regional Director for Region 19 is invalid. Long-
shoremen ILWU Local 4 (Tidewater Barge Lines), 362 NLRB No. 40,
slip op. at 1 fn. 1 (2015).
4 We shall substitute new notices in accordance with our decision in
Durham School Services, 360 NLRB No. 85 (2014).
or her that you have been instructed not to discuss it
and refer the individual to the Human Resources rep-
resentative who is investigating your concern.
The judge found that this broad policy directing em-
ployees not to discuss investigations with their cowork-
ers violated Section 8(a)(1). He explained that “such
blanket confidentiality directives impermissibly infringe
on employees’ statutory right to discuss among them-
selves their terms and conditions of employment and
otherwise engage in concerted protected activity.”
The Respondent excepts, arguing that requiring confi-
dentiality in all of its investigations was lawful based on
legitimate business justifications. According to the Re-
spondent, these justifications include protecting witness-
es, victims, or employees under investigation from retali-
ation or harassment, as well as preventing the spread of
unfounded rumors. The Respondent maintains that its
blanket confidentiality policy is necessary to ensure the
integrity of the investigation and to encourage employees
with complaints to come forward.
We agree with the judge that the policy was unlawful.
While an employer may legitimately require confidenti-
ality in appropriate circumstances, it must also attempt to
minimize the impact of such a policy on protected activi-
ty. Thus, an employer may prohibit employee discussion
of an investigation only when its need for confidentiality
with respect to that specific investigation outweighs em-
ployees’ Section 7 rights. See Caesar’s Palace, 336
NLRB 271, 272 (2001). As found by the judge, the Re-
spondent’s generalized concern about protecting the in-
tegrity of all of its investigations was insufficient to justi-
fy its sweeping policy. Rather, in weighing the compet-
ing interests, the Respondent was obligated to determine
whether the particular circumstances of an investigation
created legitimate concerns of witness intimidation or
harassment, the destruction of evidence, or other mis-
conduct tending to compromise the integrity of the in-
quiry. See Banner Estrella, supra, 362 NLRB No. 137,
slip op. at 2–3. The Respondent’s blanket approach
clearly failed to satisfy this requirement and thus inter-
fered with employees’ Section 7 rights.5 See Hyundai

5 We also adopt the judge’s finding that the Respondent unlawfully
disciplined Charging Party Joanna Gamble pursuant to this unlawful
confidentiality policy. In Continental Group, Inc., 357 NLRB No. 39,
slip op. at 4 (2011), the Board clarified that “discipline imposed pursu-
ant to an unlawfully overbroad rule violates the Act in those situations
in which an employee violated the rule by (1) engaging in protected
conduct or (2) engaging in conduct that otherwise implicates the con-
cerns underlying Section 7 of the Act.” We agree with the judge that
the written warning issued to Gamble was unlawful under both prongs
of this test, and that the Respondent failed to adequately repudiate the
unlawful warning.
3
BOEING CO.
America Shipping Agency, 357 NLRB No. 80, slip op. at
1, 14–15 (2011) (no legitimate and substantial business
justification where employer routinely prohibited em-
ployees from discussing matters under investigation).
2. Since November 2012, the Respondent has provided
a revised confidentiality notice to employee witnesses
participating in human resources investigations. This
revised notice (with pertinent changes from original no-
tice in italics) states, in relevant part, that:
Human Resources Generalist investigations deal
with sensitive information. Because of the sensitive
nature of such information, we recommend that you
refrain from discussing this case with any Boeing
employee other than company representative[s] in-
vestigating this issue or your union representative, if
applicable. Doing so could impede the investigation
and/or divulge confidential information to other em-
ployees.
As a participant in the investigation, the infor-
mation you provide will be treated in a sensitive
manner, however the investigator will not promise
absolute confidentiality. Information regarding the
investigation may be disclosed to person(s) on a
need to know basis.
Please contact the investigator if you have any
questions in this matter. If any coworker or manager
asks to discuss the case with you, we recommend
that you inform him or her that Human Resources
has requested that you not discuss the case, and refer
the individual to the Human Resources representa-
tive who is investigating the matter.
The Respondent asked employee witnesses to sign the re-
vised notice to indicate that the Respondent had advised
them of this policy and that they understood it.
As shown, the revised notice is virtually identical to
the original notice, substituting “we recommend that you
refrain from discussing the case” for “you are directed
not to discuss this case” with coworkers. The judge
found that the Respondent’s routine use of the revised
notice, like the prior version, infringed on employee
rights in violation of Section 8(a)(1). The judge rejected
the Respondent’s argument that the substitution of “rec-
ommend” for “direct” cured whatever defects existed in
the original notice. The judge found that, in context,

In finding the confidentiality policy unlawful, Member Johnson does
not rely on Banner Estrella Medical Center, 362 NLRB No. 137, or
Hyundai America Shipping Agency, 357 NLRB No. 80 (2011). Mem-
ber Johnson agrees that the Respondent’s postinvestigation discipline of
Gamble was unlawful because the Respondent was aware of her pro-
tected conduct. He also agrees that the Respondent’s repudiation was
not adequate, but only because it was not unambiguous.
“recommend” should be treated as equivalent to “re-
quest,” which the Board has found unlawful. See
Heck’s, Inc., 293 NLRB 1111, 1114, 1119 (1989)
(“company requests you regard your wage as confiden-
tial” held violative of 8(a)(1) as restraining employees’
Sec. 7 activity). We agree with the judge’s findings.
The Board has long held that the determination wheth-
er a rule is unlawful “is not premised on mandatory
phrasing, subjective impact, or even evidence of en-
forcement, but rather on the reasonable tendency of such
a prohibition to coerce employees in the exercise of fun-
damental rights protected by the Act.” Radisson Plaza
Minneapolis, 307 NLRB 94, 94 (1992), enfd. 987 F.2d
1376 (8th Cir. 1993). As discussed by the judge, the
Board has found similar requests for compliance with
employer directives to violate the Act because of their
reasonable tendency to inhibit protected activity. See id.
(rule unlawfully stated that “[y]our salary is determined
individually, is confidential, and shouldn’t be discussed
with anyone other than your supervisor or the Personnel
Department”); Heck’s, Inc., supra at 1119 (finding un-
lawful rule that “company requests you regard your wage
as confidential and do not discuss your salary arrange-
ments with any other Employee”). In addition, in finding
that the revised confidentiality notice would likewise
reasonably tend to inhibit Section 7 activity, the judge
properly relied on the notice’s clear communication of
the Respondent’s desire for confidentiality, the Respond-
ent’s routine requests that employees sign the notice, and
the lack of any assurance in the notice that employees
were free to disregard the Respondent’s recommendation
that they refrain from discussing the matter under inves-
tigation. In these circumstances, the Respondent is not
stating only a mere “preference” for confidentiality, as
maintained by our dissenting colleague. Employees have
a Section 7 right to discuss employer investigations with
their coworkers. See, e.g., Inova Health System, 360
NLRB No. 135, slip op. at 6–7 (2014). By infringing on
that right, the revised notice shares the flaws of the origi-
nal version and is also unlawful.
Our dissenting colleague contends that the Respond-
ent’s use of the term “recommend” is not equivalent to
the unlawful use of “shouldn’t” in Radisson Plaza or
“request” in Heck’s. We find his contention unpersua-
sive. First, the generally accepted definition of “recom-
mend” is “to advise.”6 See, e.g., Merriam-Webster’s

6 We reject our colleague’s suggestion that in finding the revised no-
tice unlawful, we are “distort[ing] the ordinary meaning” of “recom-
mend,” “request,” and “advise.” We construe such words as an em-
ployee would—within the full context of the revised notice. That con-
text includes the fact that when an employer “recommends,” “re-
quests,” or “advises” that its employee act or refrain from acting in
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Collegiate Dictionary (10th ed. 1999). Thus, there is not
a material difference between the use of “recommend”
here and the language at issue in the above cases. Fur-
ther, the Respondent itself treats “recommend” as synon-
ymous with “request” in the revised notice when stating
“we recommend that you inform [inquiring persons] that
Human Resources has requested that you not discuss the
case” (emphasis added). Finally, as found by the judge,
employees would not feel free to disregard the Respond-
ent’s “recommendation” where, as here, it is part of a
formal policy, reinforced by the requirement that em-
ployees sign the notice.7
Our colleague also emphasizes the Respondent’s pur-
portedly legitimate confidentiality interests as a basis for
finding the revised notice to be lawful. But as with the
original notice, the Respondent has not demonstrated the
existence of a legitimate and substantial business justifi-
cation for this rule. In order to do so, it must be shown
that “witnesses need protection, evidence is in danger of
being destroyed, testimony is in danger of being fabricat-
ed, and there is a need to prevent a cover up. Only if the

some manner, the employee could reasonably construe the communica-
tion as carrying the potential for retaliation that would not exist in other
relationships. See NLRB v. Gissel Packing Co., 395 U.S. 575, 617
(1969) (“Any assessment of the precise scope of employer expression,
of course, must be made in the context of its labor relations setting . . . .
And any balancing of those rights 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.”). This is not to say, as our colleague suggests
we do, that an employer’s request always implicates an employee’s
economic dependence and an inherent potential for adverse conse-
quences. The absence of such conditions, however, requires a showing
of circumstances not present in this case.
7 Our colleague also contends that in Radisson Plaza Minneapolis,
supra, the Board purportedly focused on an illustration of a paycheck
emblazoned with the words “TOP SECRET” alongside the rule in
question as the basis for finding it to be unlawful. We disagree. The
Board there primarily found that the rule’s “advisory” phrasing that
employees not share wage information had the same unlawful effect as
a “requirement.” Id. at 94 fn. 2. The paycheck illustration was clearly
a secondary ground for finding the rule to be unlawful. Id. In applying
this precedent, we construe the Board’s holding as the most reliable
indicator of its reasoning. Unlike our colleague, we do not subscribe to
a contrary interpretation of that case based on the asserted “intimate
proximity of the rule and the paycheck illustration” in the Board’s
recitation of facts.
Our colleague further claims that Heck’s, supra, is distinguishable
because the rule in that case conjoined “request” with the imperative
“do not discuss.” Our colleague misreads that decision, as the Board’s
analysis simply presented the issue as a request not to discuss, and
found it to be an unlawful prohibition. Heck’s, supra at 1119. More
importantly, however, there simply is no meaningful difference be-
tween the request not to discuss in Heck’s and the Respondent’s rec-
ommendation here to “refrain from discussing” and to tell other em-
ployees that they have been requested not to discuss the matter.
Respondent determines that such a corruption of its in-
vestigation would likely occur without confidentiality is
the Respondent then free to prohibit its employees from
discussing these matters among themselves.” Hyundai
America Shipping Agency, supra, 357 NLRB No. 80, slip
op. at 15.8 The Respondent made no such assessment,
sweeping all investigations under its revised notice. See
id. (where employer failed to conduct any preliminary
analysis of need for confidentiality, rule against employ-
ees discussing matters under investigation was over-
broad). For that reason, the revised notice impermissibly
infringed on employees’ Section 7 rights.
Finally, our colleague’s reliance on Section 8(c) is also
unavailing. Typically, Section 8(c) applies to
noncoercive expressions of views about union represen-
tation in general or a specific union, as well as related
labor controversies. See NLRB v. Gissel Packing, supra
at 618 (Under Sec. 8(c), “an employer is free to com-
municate to his employees any of his general views
about unionism or any of his specific views about a par-
ticular union, so long as the communications do not con-
tain a ‘threat of reprisal or force or promise of bene-
fit.’”).9 No such issue is presented here.10 Moreover,
Section 8(c) cannot ever be relied on to adopt rules that
would reasonably tend to interfere with the exercise of
employees’ Section 7 rights.
For all these reasons, we adopt the judge’s finding that
the Respondent’s use of the revised confidentiality notice
violated Section 8(a)(1) as alleged.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Boeing Company, Ren-

8 For the reasons stated in our decision in Banner Estrella Medical
Center, supra, 362 NLRB No. 137, we disagree with our dissenting
colleague’s criticism of the Hyundai standard, as well as his contention
that the standard is not applicable to the Respondent’s confidentiality
directive here.
9 See also Linn v. United Plant Guard Workers, 383 U.S. 53, 62
(1966) (“the enactment of [Sec.] 8(c) manifests a congressional intent
to encourage free debate on issues dividing labor and management”);
Flying Foods, 345 NLRB 101, 105 (2005) (“Section 8(c) of the Act
explicitly recognizes the Respondent’s right to express its views about
labor issues and unionization, provided it does so in noncoercive
terms”), enfd. 471 F.3d 178 (D.C. Cir. 2006); and Wild Oats Communi-
ty Markets, 336 NLRB 179, 182 (2001) (“the legislative history of the
Taft-Hartley amendments indicates that Section 8(c) was enacted for
the principal purpose of protecting employers’ rights to express their
views or opinions regarding unions and union organization to their
employees” (original emphasis)).
10 We do not, as our dissenting colleague claims, find that Sec. 8(c)
may not apply to allegations of Sec. 8(a)(1) misconduct. In line with
longstanding Supreme Court and Board precedent, we simply find that
it does not apply to the revised notice.
5
BOEING CO.
ton, Washington, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Dated, Washington, D.C. August 27, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER JOHNSON, dissenting in part.
I agree that the Respondent’s original confidentiality
notice directing all employees involved in human re-
sources investigations not to discuss the investigation
with their coworkers was unlawfully overbroad.1 Unlike
my colleagues, however, I find that the revised confiden-
tiality notice, which only “recommends” that employees
refrain from discussion, was lawful.2
The revised notice, which all employee participants in
investigations must sign, states:
Human Resources Generalist investigations deal
with sensitive information. Because of the sensitive
nature of such information, we recommend that you

1 I also join my colleagues in rejecting the Respondent’s belated
challenge to the former Acting General Counsel’s authority to issue and
prosecute the complaint, a challenge that has in any event been mooted
by the present, validly appointed and confirmed the General Counsel’s
ratification of the complaint and its continued prosecution.
2 I disagree with my colleagues’ reliance on Hyundai America Ship-
ping Agency, 357 NLRB No. 80 (2011), and Banner Estrella Medical
Center, 362 NLRB No. 137 (2015), in finding the revised confidentiali-
ty notice unlawful. In Banner Estrella, a panel majority found unlaw-
ful an employer’s “request” that an employee refrain from repeating
what was discussed during an investigative meeting based on what the
Banner Estrella majority described as the standard applied in Hyundai.
The majority here has erroneously applied that “standard.” Member
Miscimarra dissented in Banner Estrella. Banner Estrella, supra, slip
op. at 7. I agree, for the reasons stated in his dissent, that the so-called
Hyundai standard is impractical, improper, and fails to fairly balance
employees’ Sec. 7 interests and employers’ interests in being able to
conduct essential investigations in the workplace confidentially. I
particularly disagree with the application of the standard in the prelimi-
nary stages of any investigation where an employer will likely have
little to no knowledge of the underlying facts upon which the standard
turns, i.e.: whether witnesses need protection, evidence is in danger of
being destroyed, testimony is in danger of being fabricated, and there is
a need to prevent a coverup. However, where there is a blanket com-
mand set forth, ostensibly covering all time periods and all situations,
that prohibits employees from discussing anything about a “case” under
investigation, that is too broad a directive to comport with Sec. 7 rights.
Thus, I find the violation in regard to the original notice.
refrain from discussing this case with any Boeing
employee other than company representative[s] in-
vestigating this issue or your union representative, if
applicable. Doing so could impede the investigation
and/or divulge confidential information to other em-
ployees.
As a participant in the investigation, the infor-
mation you provide will be treated in a sensitive
manner, however the investigator will not promise
absolute confidentiality. Information regarding the
investigation may be disclosed to person(s) on a
need to know basis.
Please contact the investigator if you have any
questions in this matter. If any coworker or manager
asks to discuss the case with you, we recommend
that you inform him or her that Human Resources
has requested that you not discuss the case, and refer
the individual to the Human Resources representa-
tive who is investigating the matter.
Fairly read, the revised notice would not reasonably be
understood by employees as interfering with their Sec-
tion 7 rights to discuss information regarding investiga-
tions with others. It only recommends that employees
refrain from doing so, based on the lawfully expressed
employer interest in protecting the integrity of those in-
vestigations. There is no mandate to refrain, either ex-
press or implicit; neither is there any suggestion that dis-
cipline could result from failing to follow the recom-
mended course of action. Employees are advised of the
reasons why the Respondent believes they should not
discuss matters under investigation, but the choice of
accepting or ignoring this advice is left to them.
In reaching the contrary conclusion, my colleagues
seem to contend that an employer’s use of the word “rec-
ommend,” standing alone, would reasonably be viewed
by employees as a mandatory direction. In their view, it
makes no difference whether an employer “recom-
mends,” “advises,” or “requests” an employee to main-
tain the confidentiality of an investigation. But that dis-
torts the ordinary meaning of these words, which are
clearly not synonymous with words such as “direct,”
“order,” or “mandate.” In the abstract, they are merely
hortatory in inviting voluntary compliance with a course
of action favored by the employer.3
I do agree with my colleagues that the meaning of
“recommend” and similar words can vary in context. In

3 It is possible for an employer to ask an employee to do something
without the employee construing the communication as carrying the
potential for retaliation simply because of the employee’s economic
dependence. There is, for instance, a well-established conceptual
difference between mandatory overtime and voluntary overtime.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fact, that is precisely why I find that neither of the two
Board decisions4 they and the judge rely on support giv-
ing recommend a mandatory connotation in this case.
First, the employers in those cases did not even attempt
to offer a legitimate explanation for telling employees
that discussion of their wages was confidential. Second,
even if the attempt were made, the Board has never rec-
ognized that there can be a legitimate reason for treating
wage discussions as confidential. By contrast, even my
colleagues in the majority have recognized that there are
specific circumstances in which employers can legiti-
mately treat investigation matters as confidential.
Finally, the rule in each of the cited cases contains lan-
guage providing a mandatory context that does not exist
in the Respondent’s revised policy. In Radisson Plaza,
the employer’s rule stated that: “Your salary is deter-
mined individually, is confidential, and shouldn’t be dis-
cussed with anyone other than your supervisor or the
Personnel Department.” 307 NLRB 94 (emphasis add-
ed). On its face, I find that a reasonable employee would
view “shouldn’t” as obviously distinguishable from “rec-
ommend” in determining whether compliance was op-
tional, but in this instance the rule was “accompanied by
an illustration of a paycheck with the words “TOP
SECRET” emblazoned across it . . . .”5 Id. In that con-
text, the Board understandably reasoned any arguable
distinction between a rule that “requires” and one that
“advises” employees not discuss wages “certainly is
obliterated by the Respondent’s use of a graphic that
boldly indicates that the contents of an employee’s pay
envelope are ‘top secret.’” Id. at 94 fn. 2 (emphasis add-
ed).
Similarly, in Heck’s, the employer’s rule stated that:
“The wage paid each Employee is considered confiden-
tial information. Therefore your company requests you
regard your wage as confidential and do not discuss your
salary arrangements with any other Employee.” Id. at
1119 (emphasis added). The rule thus conjoined a “re-
quest” with an imperative “do not discuss.”
In both cases then, although the employers’ rules may
have been partially couched in arguably precatory terms,
when read in appropriate context the rules would reason-
ably tend to interfere with any discussion of wages by
employees and thus would tend to unlawfully inhibit
employee Section 7 activity. The mere “recommenda-

4 Radisson Plaza Minneapolis, 307 NLRB 94, 94 (1992), enfd. 987
F.2d 1376 (8th Cir. 1993), and Heck’s, Inc., 293 NLRB 1111 (1989).
5 Although my colleagues wish to down play the paycheck illustra-
tion’s interpretative significance, its contextual importance to the
Board’s determination is apparent from the Board’s noting at the outset
of its analysis the intimate proximity of the rule and the paycheck illus-
tration.
tion” of employee behavior in this case lacks such con-
text. The Respondent’s revised policy contains no word-
ing suggesting that the Respondent’s “recommendation”
that employees refrain from discussing an investigation
is anything else. Yet my colleagues and the judge find
that the revised notice’s “clear communication of the
Respondent’s desire for confidentiality” still makes it a
mandatory directive absent assurances to the contrary in
the notice. In other words, it is apparently not enough
for an employer to recommend, that in light of legitimate
confidentiality concerns, that employees not discuss mat-
ters under investigation. It must also vitiate the recom-
mendation by expressly stating “feel free to do as you
wish.”
The original notice told employee witnesses in every
investigation that they were “directed” and “instructed”
not to discuss the case. The overly broad application of
that language to every investigation was contrary to
Board precedent holding that blanket confidentiality di-
rectives impermissibly infringe on employees’ statutory
rights. The revised notice twice substitutes for the prior
flat prohibition, equally plain, precatory language that
“recommend[s] that you refrain from discussing” and
that, if asked to discuss the case, “recommend[s] . . . in-
form[ing] [the inquirer] . . . that [the Respondent] has
requested that [the employee] not discuss the case . . . .”
These revisions quite clearly communicate that the Re-
spondent is merely expressing its preference, rather than
mandating confidentiality. The revised language also
clearly communicates the Respondent’s legitimate rea-
sons for the recommendation and preference. It cannot
be seriously disputed that human resources investigations
may deal with “sensitive information” about employees
and that legitimate concerns exist about the effects on the
investigatory process if such information is not kept con-
fidential.
In sum, absent any express or implicit basis for deem-
ing the revised policy to be a mandatory direction, it is an
expression of opinion as to whether employees should
engage in the protected activity of discussing with others
matters that are under investigation. The Respondent’s
right to communicate this legitimate desire for confiden-
tiality in noncoercive terms on this subject is expressly
protected by Section 8(c) of the Act, which assures the
right of an employer to express “‘any views, argument,
or opinion’ in any media form without committing an
unfair labor practice” so long as an employer’s commu-
nications contain no threat of reprisal or promise of bene-
fit. NLRB v. Pratt & Whitney Air Craft Div., United
Technologies Corp., 789 F.2d 121, 134 (2d Cir. 1986)
(citation omitted) (employer has 8(c) right to communi-
cate with employees about negotiations). The revised
7
BOEING CO.
notice clearly expresses only the Respondent’s prefer-
ence without any threat of reprisal or promise of benefit.
While I certainly agree with my colleagues that Sec-
tion 8(c) was intended to protect an employer’s
noncoercive expression of views about employees’ union
organizational activity, it is not limited to only such
statements. Obviously, Section 8(c) applies to “unfair
labor practices” by its plain text, and the Board has ap-
plied it as such, as Pratt & Whitney, supra, itself demon-
strates. “Section 8(c) explicitly recognizes that not all
displeased communications from an employer to an em-
ployee are coercive . . . .” [so] “to violate Section 8(a)(1),
a statement must contain a threat of reprisal or force or
promise of benefit.” Greater Omaha Packing Co., Inc. v.
NLRB, 790 F.3d 816, 822–823 (8th Cir. 2015) (supervi-
sor’s asking employee “what it is [he] wanted” just be-
fore employee’s unlawful firing did not itself violate Sec.
8(a)(1) as it did not coerce the employee and was pro-
tected by Sec. 8(c)). As I don’t believe a recommenda-
tion is really a threat in disguise, I fault my colleagues
for essentially reading Section 8(c) out of the statute
when it comes to Section 8(a)(1). The courts have in-
structed us, at the very least, to thoughtfully grapple with
those sections of the Act that might conflict in a particu-
lar case, and my colleagues have come nowhere close to
doing so here. See Children’s Hospital & Research Cen-
ter of Oakland, Inc. v. NLRB, 793 F.3d 56 (D.C. Cir.
2015) (remanding case to Board for mishandling “[t]he
interplay of [S]ection 8(a)(5) and [S]ection 9(a)” by fail-
ing “to wrestle with [those] relevant statutory provisions”
in determining the case outcome).
Contrary to my colleagues, the Respondent’s revised
notice cannot be reasonably construed as coercive be-
cause it clearly communicates the “Company’s desire for
confidentiality” nor because, by “asking the employee
witnesses to actually sign the revised notices,” it clearly
communicates that the “confidentiality concerns should
be taken seriously.” Furthermore, the suggestion that the
notice lacks some additional assurance that the “recom-
mendation” may be disregarded is just bootstrapping—
requiring acceptance of the unsupported implicit premise
that the revised notice is coercive without such assuranc-
es. Because the revised notice quite clearly and straight-
forwardly states the Respondent’s undemanding recom-
mendation that employees refrain from discussing the
investigation, nothing more is needed.6 “Common sense
sometimes matters in resolving legal disputes,” and it

6 My colleagues assert that the Respondent has failed to demonstrate
a “legitimate and substantial justification for this rule,” citing Hyundai,
supra (emphasis added). As the Respondent is stating only its prefer-
ence that employees maintain the confidentiality of the investigation,
there is no “rule” that the Respondent must justify.
should prevail here. See Southern New England Tele-
phone Co. v. NLRB, 793 F.3d 93, 93 (D.C. Cir. 2015).
In sum, while the Respondent’s original confidentiality
notice’s blanket prohibition on discussion of the human
resources investigations was not lawful, the Respondent
has the right to express its opinion about the handling of
sensitive information from an investigation and to “rec-
ommend” that employees refrain from discussing the
investigation. The revised confidentiality notice does
nothing more than that. I would therefore reverse the
judge and dismiss the complaint allegation on this issue.
Dated, Washington, D.C. August 27, 2015
______________________________________
Harry I. Johnson, III, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX A
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 maintain or routinely distribute or en-
force confidentiality directives, requests, and/or recom-
mendations to employees involved in human resources
(HR) investigations not to discuss the case with their
coworkers.
WE WILL NOT discipline employees for violating such
overbroad confidentiality directives, requests, and/or
recommendations.
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, within 14 days of the Board’s Order, to the
extent we have not already done so, revise or rescind the
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
HR investigation confidentiality notices in effect prior to
and since November 2012.
WE WILL, within 14 days of the Board’s Order, to the
extent we have not already done so, rescind the August 9,
2012 written warning we issued to employee Joanna
Gamble for violating the HR investigation confidentiality
notice, and WE WILL, within 3 days thereafter, advise her
in writing that this has been done and that the warning
will not be used against her in any way.
THE BOEING COMPANY
The Board’s decision can be found at
www.nlrb.gov/case/19-CA-089374 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or
by calling (202) 273-1940.
APPENDIX B
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 maintain or routinely distribute or en-
force confidentiality directives, requests, and/or recom-
mendations to employees involved in human resources
(HR) investigations not to discuss the case with their
coworkers.
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, within 14 days of the Board’s Order, revise
or rescind the HR investigation confidentiality notices in
effect prior to and since November 2012, to the extent
we have not already done so.
THE BOEING COMPANY
The Board’s decision can be found at
www.nlrb.gov/case/19-CA-089374 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or
by calling (202) 273-1940.
M. Anastasia Hermosillo, Esq.,for the Acting General Counsel.
Charles N. Eberhardt, Esq. (Perkins, Coie LLP), for the Re-
spondent Company.
DECISION
JEFFREY D. WEDEKIND, Administrative Law Judge. In early
August 2012, Boeing disciplined Joanna Gamble, an unrepre-
sented employee at its Renton, Washington facility, for com-
municating with coworkers about a recently completed human
resources (HR) investigation into Gamble’s allegations against
her supervisor. Boeing asserted that, by doing so, Gamble had
violated a confidentiality notice she had signed during the in-
vestigation, which specifically “directed” witnesses not to dis-
cuss the case with any Boeing employee other than the investi-
gators or the witness’ union representative, if applicable.
Gamble responded by filing the instant unfair labor practice
charge, alleging that the discipline unlawfully interfered with
her statutory right under the National Labor Relations Act (the
Act) to discuss the terms and conditions of her employment
with her coworkers.1 About 10 days later, in late September
2012, the Company rescinded the discipline and notified Gam-
ble that it had done so. Effective November 2012, it also re-

1 Gamble subsequently filed an amended charge on November 16,
2012, alleging that the confidentiality notice itself also violated the Act.
9
BOEING CO.
placed its standard confidentiality notice with a revised notice
that instead “recommend[ed]” employee witnesses refrain from
discussing the case with other employees.
The General Counsel, however, concluded that the revised
confidentiality notice was just as objectionable as the original
notice under extant law, and that the Company likewise failed
to adequately repudiate the unlawful discipline issued to Gam-
ble pursuant to the original notice. Accordingly, on January 29,
2013, the General Counsel issued the instant complaint alleging
that all three—the original confidentiality notice, the revised
notice, and the discipline to Gamble—violated the Act.
On February 12, the Company filed an answer denying all of
the foregoing allegations. Thereafter, on June 6, the General
Counsel and the Company jointly moved for a decision in the
case without a hearing, based solely on a stipulated record.2 I
granted the joint motion on June 7, and the parties filed their
briefs on July 11.
After carefully considering the briefs and the entire stipulat-
ed record, for the reasons set forth below I find that the Com-
pany violated the Act as alleged.3
I. THE ORIGINAL CONFIDENTIALITY NOTICE
In relevant part, the Company’s original confidentiality no-
tice stated as follows:
Human Resources investigations deal with sensitive infor-
mation and may be conducted under authorization of the Boe-
ing Law Department. Because of the sensitive nature of such
information, you are directed not to discuss this case with any
Boeing employee other than company employees who are in-
vestigating this issue or your union representative, if applica-
ble. Doing so could impede the investigation and/or divulge
confidential information to other employees.
As a participant in the investigation, the information you pro-
vide will be treated in a sensitive manner, however the Inves-
tigator will not promise absolute confidentiality. Information
regarding the investigation may be disclosed to person(s) on a
need to know basis.
Please contact the investigator if you have any questions in
this matter. If any coworker or manager asks to discuss the
case with you, please inform him or her that you have been
instructed not to discuss it and refer the individual to the Hu-
man Resources representative who is investigating your con-
cern.
The Company admits that it routinely gave this confidentiality
notice to employee witnesses during HR investigations at most
of its facilities prior to November 2012 (Stip. par. 11; and R.

2 See Sec. 102.35(a)(9) of the Board’s Rules.
3 Commerce jurisdiction is admitted and well established by the
stipulated record. Although the Company argues that “the complaint is
ultra vires” and may not lawfully be processed due to the lack of a
valid Board quorum (citing, e.g., Noel Canning v. NLRB, 705 F.3d 490
(D.C. Cir. 2013), petition for certiorari granted 133 S.Ct. 2861 (2013)),
the Board has rejected similar arguments in numerous other cases. See,
e.g., 2 Sisters Food Group, 359 NLRB No. 158 fn. 1 (2013); and
Bloomingdale’s, Inc., 359 NLRB No. 113 (2013).
Br. 11). The Company also acknowledges that the notice was
“effectively a rule of conduct” (Br. 10).
As indicated by the General Counsel, extant Board law is
clear that such blanket confidentiality directives impermissibly
infringe on employees’ statutory right to discuss among them-
selves their terms and conditions of employment and otherwise
engage in concerted protected activity. See Hyundai America
Shipping Agency, 357 NLRB No. 80 (2011) (employer violated
Sec. 8(a)(1) of the Act by routinely instructing employees not
to talk to other employees about matters under investigation,
without any consideration of whether confidentiality was truly
necessary to prevent corruption of the investigation). Accord:
Banner Estrella Medical Center, 358 NLRB No. 93 (2012).
Indeed, the Company concedes that its original confidentiality
notice “is difficult to reconcile” with the foregoing Board prec-
edent (R. Br. 9).
Nevertheless, the Company contends that the original notice
did not violate the Act, as the foregoing Board precedent is
“wrong.” Like the employer in Hyundai, supra, the Company
argues that it “has legitimate interests in keeping every ongoing
HR investigation confidential”—”ensuring the integrity of in-
vestigations, preventing workplace retaliation for participation
in investigations, and fostering an environment where employ-
ees will readily report issues”—and that these interests “out-
weigh any potential employee interest in discussing ongoing
HR investigations.” (R. Br. 9–11.) Moreover, the Company
argues that it is impractical for it to conduct a separate evalua-
tion in each HR investigation to determine whether the Compa-
ny’s need for confidentiality outweighs the employee witness’
statutory rights.
The Company’s arguments are not without factual or legal
support. The parties stipulated that, since September 2011, the
Company has conducted over a thousand HR investigations in
its Commercial Airplane group (BCA) alone. Further, as indi-
cated by the Company, the Board itself has made similar argu-
ments to support blanket rules in other contexts. See IBM
Corp., 341 NLRB 1288, 1293 (2004) (citing the need for “dis-
cretion and confidentiality” in employer investigations as a
basis for denying unrepresented employees a Weingarten right
to have a coworker representative present during investigatory
interviews); and NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 222 (1978) (arguing that the Court should uphold the
Board’s rule against disclosing confidential witness affidavits
until the witness has testified because, inter alia, “a particular-
ized, case by case showing [that prior disclosure would inter-
fere with enforcement proceedings] is neither required nor
practical”).
However, it makes no difference at this stage how persuasive
the arguments for revisiting Hyundai may or may not be,4 as I

4 The Board’s policy in unfair labor practice (ULP) investigations
and the Company’s policy in HR investigations are not entirely analo-
gous. Thus, although employee witnesses are routinely advised during
ULP investigations not to show their pretrial Board affidavits to anyone
(see NLRB Casehandling Manual, Part One, Secs. 10060.6 and
10060.9), this does not restrict them from even discussing the ULP
investigation with other employees. However, this distinction does not
by itself adequately answer the argument that it is just as impractical to
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
am bound to follow Board precedent unless and until it is re-
versed by the Supreme Court. See Pathmark Stores, 342
NLRB 378, 378 fn. 1 (2004). Accordingly, I find that the
Company’s routine use of the original confidentiality notice to
prohibit employee witnesses from discussing ongoing HR in-
vestigations with other employees violated Section 8(a)(1) of
the Act, as alleged.5
II. THE REVISED CONFIDENTIALITY NOTICE
As indicated above, after the unfair labor practice charge in
this case was filed, the Company created a revised confidential-
ity notice. In relevant part, the revised notice states as follows:
Human Resources Generalist investigations deal with
sensitive information. Because of the sensitive nature of
such information, we recommend that you refrain from
discussing this case with any Boeing employee other than
company representative[s] investigating this issue or your
union representative, if applicable. Doing so could im-
pede the investigation and/or divulge confidential infor-
mation to other employees.
As a participant in the investigation, the information
you provide will be treated in a sensitive manner, however
the investigator will not promise absolute confidentiality.
Information regarding the investigation may be disclosed
to person(s) on a need to know basis.
Please contact the investigator if you have any ques-
tions in this matter. If any coworker or manager asks to
discuss the case with you, we recommend that you inform
him or her that Human Resources has requested that you
not discuss the case, and refer the individual to the Human
Resources representative who is investigating the matter.
As with the original notice, the Company admits that, since
November 2012, it has routinely given the revised notice to
employee witnesses during HR investigations at most of its
facilities. Indeed, the Company has asked the witnesses to actu-
ally sign the notice. (Stip. par. 12.)
The Company argues that, by substituting “recommend” for
“directed,” the revised confidentiality notice has cured any
arguable deficiencies in the original notice (R. Br. 12). The
General Counsel, on the other hand, argues that the revised
notice is just as unlawful as the original, citing, e.g., Radisson
Plaza Minneapolis, 307 NLRB 94 (1992), enfd. 987 F.2d 1376
(8th Cir. 1992) (handbook statement that employees
“shouldn’t” discuss their salary with anyone had a reasonable
tendency to coerce employees in the exercise of their statutory
rights notwithstanding its nonmandatory phrasing).

conduct confidentiality evaluations in each HR investigation as it is to
do so in each ULP investigation.
5 It is not entirely clear that the confidentiality notice applied only to
ongoing investigations, or that employees, investigators, and managers
understood this. Indeed, as discussed below, the circumstances sur-
rounding the discipline issued to Gamble indicate the opposite. How-
ever, as noted by the Company, the complaint does not allege that the
confidentiality notice was unlawful because it applied even after inves-
tigations were completed. Accordingly, I have not addressed that issue;
rather, consistent with the complaint allegations, I find that the notice
was unlawful under current Board law even assuming it applied only to
ongoing investigations.
Again, I find that the General Counsel has the better argu-
ment under extant law. First, the revised notice itself suggests
that the Company’s “recommendation” should be treated as a
“request,” and the Company concedes that this is an accurate or
reasonable interpretation (R. Br. 14–15). Second, like the orig-
inal notice, the revised notice clearly communicates the Com-
pany’s desire for confidentiality. Third, by asking the employee
witnesses to actually sign the revised notice, the Company has
also clearly communicated that its confidentiality concerns
should be taken seriously. Finally, contrary to the Company’s
contention, nothing in the revised notice can reasonably be
interpreted as an assurance to employees that they are neverthe-
less “free” to disregard the Company’s recommenda-
tion/request and “discuss the case if he or she chooses to do so”
(R. Br. 16).6
In agreement with the General Counsel, I find that, in these
circumstances, like the handbook statement found unlawful in
Radisson, the revised notice would have a reasonable tendency
to chill employees from exercising their statutory rights. See
also Heck’s, Inc., 293 NLRB 1111, 1114, 1119 (1989) (reach-
ing same conclusion with respect to employer’s “request” that
employees not discuss their salary); Fresenius USA Mfg., 358
NLRB No. 138 fn. 1 and JD. at 22, 40 (2012) (likewise finding
a violation under the circumstances even though employer said
only that it “would appreciate” and “prefer” the employee not
talking about the investigation); and NLRB v. Koronis Parts,
Inc., 927 F.Supp. 1208 (D. Minn. 1996) (granting Board’s re-
quest for interim injunction requiring employer to revoke hand-
book provision that “ask[ed]” employees not to discuss their
wages with other employees).
Accordingly, for the reasons previously discussed, I find that
the Company’s routine use of the revised confidentiality notice
in ongoing HR investigations since November 2012 likewise
violated Section 8(a)(1) of the Act, as alleged.7
III. THE DISCIPLINE ISSUED TO GAMBLE
Gamble has worked for Boeing for over 30 years and is cur-
rently a BCA single-aisle process technical integrator (PTI) at
the Company’s Renton, Washington facility. In May 2012, she
complained to the Company about certain “unacceptable behav-
ior” by her male supervisor (Carroll) and another,
nonmanagement male worker (Muller) on the single-aisle

6 For example, I reject the Company’s argument that the fourth and
last paragraph of the notice, which states that the Company “prohibits
retaliation against any individual who makes a complaint or participates
in an investigation,” makes clear that employee witnesses are free to
discuss the investigation with other employees. I also reject the Com-
pany’s contention that the second sentence of the second paragraph can
reasonably be read as assuring employee witnesses that they may dis-
close information about the case on a need to know basis. In context,
the sentence clearly refers to the investigator disclosing information on
a need to know basis, not the employee witnesses doing so.
7 In any event, even assuming the revised notice is not unlawful, I
would find that it was insufficient by itself to repudiate the Company’s
unlawful routine use of the original notice. See Fresh & Easy Neigh-
borhood Market, 356 NLRB No. 85, slip op. at 16 (2011), enfd. mem.
468 Fed.Appx. 1 (D.C. Cir. 2012), and the discussion infra regarding
the Company’s rescission of the discipline issued to Gamble.
11
BOEING CO.
team.8 Among other things, Gamble alleged that Carroll and
Muller had made negative comments during single-aisle PTI
meetings about their female counterparts on the twin-aisle
team, employees Ingraham and Stroscheim and their female
manager, Rainbow; that Carroll had referred to the mostly-
female PTI meeting as a “bitch” session; and that Carroll had
also used the word “bitch” when referring to Stroscheim and
Rainbow, who he said reminded him of his ex-wife. Gamble
stated that she and another female employee on the single-aisle
team (Foote) had addressed this with both Carroll and Muller
and “taken it up through other venues,” but the behavior had
escalated and she and Foote were told they would be replaced
by younger workers and were instructed to work through their
lunchbreaks. Gamble set forth the foregoing allegations and
complaints in an email, which she addressed to numerous com-
pany managers and executives, and copied (cc’d) to Ingraham,
Stroscheim, Rainbow, and Foote.
In response to Gamble’s email, the following month the
Company conducted an HR investigation into three specific
allegations: (1) that in November 2011 Carroll had referred to a
meeting as a “bitch session” and used the word “bitch” when
referring to a meeting; (2) that in February 2012 Carroll had
raised his voice at Gamble when he questioned her about her
lunch period; and (3) that Muller had bullied Gamble and made
negative comments about coworkers. As part of this investiga-
tion, the HR investigator (Sanchez) interviewed several wit-
nesses, including Gamble, Foote, and Carroll himself. Howev-
er, Sanchez did not interview Ingraham, Stroscheim, or Rain-
bow, assertedly because they had not observed the three dis-
crete allegations being investigated.9
Sanchez completed her HR investigation report to manage-
ment on July 2, 2012. The report concluded that the three sub-
ject allegations were “not substantiated” by the investigation.
Sanchez informed Gamble of this conclusion the following day,
July 3. She also acknowledged to Gamble that Ingraham,
Stroscheim, and Rainbow had not been interviewed as part of
the investigation.
Later the same day, Gamble sent two emails to all three
women, as well as Foote. Gamble expressed disappointment
with the limited scope and outcome of the investigation, and
particularly the fact that Sanchez had not interviewed them
about corroborating behavior or actions by Carroll. Gamble
urged them to inquire why they were not contacted by Sanchez,
and to stand together and hold the Company accountable for
Carroll’s behavior.
Several days later, on July 9, one of the women, Stroscheim,
sent an email to Sanchez. The email—entitled “Case closed
regarding [] Carroll?”—indicated that Gamble had spoken to
her and that she (Stroscheim) was “very disappointed” to learn
that the case was closed with “no findings” without her being
interviewed.

8 The record indicates that both Carroll and Muller have also worked
for Boeing for over 30 years.
9 Sanchez did not interview Muller because Gamble’s allegations re-
garding him were considered insufficiently specific to warrant an inter-
view.
Two days later, on July 11, Sanchez sent an email Gamble.
The email reminded Gamble that she had signed a confidenti-
ality notice during the investigation; advised Gamble that the
Company had received information that the notice may have
been breached; “directed” Gamble “not to discuss the investiga-
tion with any other Boeing employee”; and advised that “[a]
breach of the Notice or the sharing of confidential and/or sensi-
tive information could lead to investigation and disciplinary
action.”
Gamble replied to Sanchez by email later the same day. She
admitted that Sanchez was “partially correct”; that she “did
breach the confidentiality agreement in part.” Gamble stated
that she did so because Boeing had “breached their commit-
ment” to her by encouraging employees to come forward but
then conducting only a partial investigation and failing to inter-
view employees she had identified for corroboration.
Sanchez reported Gamble’s reply, and the Company thereaf-
ter had another HR investigator (Granbois) take a statement
from Gamble about the matter. Gamble at that time again
acknowledged that she had breached the confidentiality notice,
after Sanchez told her that the investigation was concluded, by
advising the women named in her complaint that they would
not be interviewed by Sanchez.
On August 3, 2012, Granbois issued his report. The report
was based solely on Stroscheim’s email to Sanchez, and Gam-
ble’s subsequent email and statement. Gamble’s previous,
postinvestigation emails to Stroscheim, Ingraham, Rainbow,
and Foote were not themselves considered, apparently because
they were never provided to Granbois. The report concluded
that Gamble had “breached her investigation confidentiality
agreement . . . following the conclusion of the investigation . . .
by informing other individuals outside of the investigation of
the investigation and its outcome.”
Several days later, on August 9, the Company issued a writ-
ten warning to Gamble. The warning stated that it had been
determined that Gamble had “failed to comply” with the confi-
dentiality notice by “discuss[ing] the investigation with others,”
and that future violations could result in further corrective ac-
tion, including discharge.
However, the Company rescinded the warning approximate-
ly 7 weeks later, on September 28, after Gamble filed her Sep-
tember 17 unfair labor practice charge. The Company notified
Gamble of this by letter dated the following day, October 1.
The letter stated:
Recently the National Labor Relations Board ruled [in Banner
Estrella Medical Center, above] that an employer cannot pro-
hibit employees from discussing on-going employer investi-
gations other than in specific, individualized circumstances.
We were unaware of this ruling at the time of your Corrective
Action for “Failure to Comply with the Notice of Confidenti-
ality and Prohibition against Retaliation.” Accordingly, we
have rescinded this corrective action from your record.
Nevertheless, the Company contends in the instant proceed-
ing that the warning was actually entirely lawful. First, as dis-
cussed above, it contends that the Board’s ruling in Banner was
wrong. Second, it contends that the only conduct the Company
was aware of and disciplined Gamble for (notifying other em-
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees that the investigation had closed with “no findings” and
that they would not be interviewed) did not itself seek or en-
courage the employees to take any group action, and therefore
did not constitute concerted protected activity. Finally, the
Company alternatively argues that it promptly and effectively
cured any violation by voluntarily rescinding the warning and
notifying Gamble that the Company had done so within several
days after the matter came to the attention of the Company’s
legal department. The Company argues that no further action
was necessary as there is no evidence that any other employees
were aware of the warning, and the Company replaced the orig-
inal confidentiality notice with the revised notice.
I reject all of the Company’s arguments. As discussed
above, I am bound to follow Board precedent, and the Compa-
ny’s original confidentiality notice was clearly unlawful under
both Banner and the Board’s 2011 decision in Hyundai. Fur-
ther, as indicated by the General Counsel, Board precedent also
holds that disciplining an employee pursuant to an unlawfully
overbroad rule is likewise unlawful, even if the employee’s
conduct was not concerted, if the conduct is of a type that im-
plicates concerns underlying the Act, and the discipline could
therefore chill employees from exercising similar conduct that
constitutes concerted protected activity. See Continental
Group, Inc., 357 NLRB No. 39 (2011) (distinguishing, for ex-
ample, an employee seeking higher wages from an employee
sleeping on the job). Accord: Taylor Made Transportation
Services, 358 NLRB No. 53 (2012).
Gamble’s conduct here clearly qualifies as this type of con-
duct, and the Company does not contend otherwise. Nor does
the Company contend that Gamble’s postinvestigation commu-
nication to her four coworkers actually interfered with the in-
vestigation and that this was the reason for the discipline. See
id. (employer can avoid liability for the discipline if it can es-
tablish that the employee’s conduct actually interfered with the
employer’s operations, and that the interference, rather than the
violation of the rule, was the reason for the discipline). The
Company concedes, consistent with the warning itself, that
Gamble was disciplined simply for violating the rule (R. Br.
18). In any event, given that the investigation was over, and
that Carroll, the subject supervisor, already knew about it, the
circumstances here clearly do not support such a defense. Cf.
Fresenius, above, 358 NLRB No. 138, slip op. at 40; and Mo-
bile Oil Exploration & Producing, U.S., Inc., 325 NLRB 176,
178–179 (1997), enfd. 200 F.3d 230 (5th Cir. 1999).
Moreover, in agreement with the General Counsel, I find that
a preponderance of the evidence establishes that the Company
was, in fact, sufficiently aware of the concerted nature of Gam-
ble’s admitted postinvestigation communi-cations. Although
the Company never saw Gamble’s postinvestigation emails to
her four coworkers, Gamble had openly copied all four on her
original email to the Company that precipitated the investiga-
tion regarding Carroll’s and Muller’s alleged conduct. Further,
Gamble specifically identified all four in that email as fellow
victims of the alleged conduct, and stated that one (Foote) had
already joined with her in addressing the matter directly with
Carroll and Muller and “through other venues.” Moreover, if
there was any doubt about whether any of the four supported
Gamble’s complaints, it was clearly erased by Stroscheim’s
July 9 email to Sanchez expressing disappointment with the
investigation and its outcome. Cf. Reynolds Electric, Inc., 342
NLRB 156 (2004) (finding that employer did not have the req-
uisite knowledge of the concerted nature of employee’s in-
quires where he was the only one who made the inquiries, and
the employer only knew that he previously had “informational”
conversations with other employees about the matter).
Finally, I also agree with the General Counsel that the Com-
pany failed to adequately repudiate the unlawful warning. For
a repudiation to be effective, it must be timely, unambiguous,
specific in nature to the coercive conduct, free from other pro-
scribed conduct, adequately publicized to the employees in-
volved, not followed by other proscribed conduct, and accom-
panied by assurances to employees that the employer will not
interfere with the exercise of their statutory rights. Passavant
Memorial Area Hospital, 237 NLRB 138 (1978). See also Ark
Las Vegas Restaurant Corp. v. NLRB, 334 F.3d 99, 108 (D.C.
Cir. 2003), and cases cited there. Here, regardless of when its
legal department learned of the discipline, the fact remains that
the Company did not rescind the warning until 7 weeks after it
was issued and over a week after Gamble filed her unfair labor
practice charge. Cf. Passavant, 237 NLRB at 139 (citing simi-
lar circumstances in finding employer’s repudiation untimely).
Moreover, as discussed above, the Company has continued to
routinely require employee witnesses in HR investigations to
sign a revised confidentiality notice that is just as unlawful as
the original under prevailing Board law. Finally, the Company
never provided assurances that it would not interfere with em-
ployee statutory rights in the future.
CONCLUSIONS OF LAW
1. By maintaining and routinely distributing confidentiality
notices that direct, request, and/or recommend to employees
involved in HR investigations not to discuss the case with their
coworkers, the Respondent Company has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
2. By disciplining employee Joanna Gamble on August 9,
2012 for violating the confidentiality notice, the Respondent
Company has likewise engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(1) and Sec-
tion 2(6) and (7) of the Act.
REMEDY
The appropriate remedy for the violations found is an order
requiring the Respondent Company to cease and desist and take
certain affirmative action. Given the Company’s admission
that its confidentiality notices have been routinely used during
HR investigations at most of its facilities nationwide, as re-
quested by the General Counsel the required affirmative reme-
dial action properly includes posting a notice to employees
regarding the unlawful confidentiality notices at all of those
facilities. Contrary to the Company’s contention, such a general
posting remedy is appropriate even though only those employ-
ees involved in the investigations were given and/or asked to
sign the confidentiality notices. See Banner, 358 NLRB No.
93, slip op. at 2 & fn. 2. Indeed, considering the large number
of HR investigations conducted by the Company, a general
13
BOEING CO.
posting remedy would likely be substantially less burdensome,
for both the Company and the Board’s compliance officer, than
a remedy that required identifying and separately notifying
each employee who was actually given and/or asked to sign the
confidentiality notices.
Accordingly, based on the foregoing findings of fact and
conclusions of law, and the entire record, I issue the following
recommended10
ORDER
The Respondent, The Boeing Company, Renton, Washing-
ton, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and routinely distributing or enforcing con-
fidentiality directives, requests, and/or recommendations to
employees involved in HR investigations not to discuss the case
with their coworkers.
(b) Disciplining employees for violating such overbroad con-
fidentiality directives, requests, and/or recommendations.
(c) 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 effec-
tuate the policies of the Act.
(a) Within 14 days of the Board’s Order, to the extent it has
not already done so, revise or rescind the HR investigation
confidentiality notices in effect immediately prior to and since
November 2012.
(b) Within 14 days of the Board’s Order, to the extent it has
not already done so, rescind the unlawful August 9, 2012 writ-
ten warning it issued to employee Joanna Gamble for violating
the HR investigation confidentiality notice, and within 3 days
thereafter, advise her in writing that this has been done and that
the warning will not be used against her in any way.
(c) Within 14 days after service by the Region, post copies
of the attached notice marked “Appendix A” at its Renton,
Washington facility, and the attached notice marked “Appendix
B” at all of its facilities nationwide where its confidentiality
notices have been used since March 17, 2012.”11 Copies of the
notices, on forms provided by the Regional Director for Region
19, after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. In addition
to physical posting of paper notices, the notices shall be distrib-
uted electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by such

10 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.
11 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.”
means. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facilities where posting is required, the Respondent
shall duplicate and mail, at its own expense, a copy of the no-
tices to all current employees and former employees employed
at those facilities at any time since March 17, 2012.
(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.
Dated, Washington, D.C. July 26, 2013
APPENDIX A
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain or routinely distribute or enforce con-
fidentiality directives, requests, and/or recommendations to
employees involved in human resources (HR) investigations
not to discuss the case with their coworkers.
WE WILL NOT discipline employees for violating such over-
broad confidentiality directives, requests, and/or recommenda-
tions.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days of the Board’s Order, to the extent
we have not already done so, revise or rescind the HR investi-
gation confidentiality notices in effect prior to and since No-
vember 2012.
WE WILL, within 14 days of the Board’s Order, to the extent
we have not already done so, rescind the August 9, 2012 writ-
ten warning we issued to employee Joanna Gamble for violat-
ing the HR investigation confidentiality notice, and WE WILL,
within 3 days thereafter, advise her in writing that this has been
done and that the warning will not be used against her in any
way.
THE BOEING COMPANY
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX B
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain or routinely distribute or enforce con-
fidentiality directives, requests, and/or recommendations to
employees involved in human resources (HR) investigations
not to discuss the case with their coworkers.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days of the Board’s Order, revise or re-
scind the HR investigation confidentiality notices in effect prior
to and since November 2012, to the extent we have not already
done so.
THE BOEING COMPANY