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Shamrock Foods Company

National Labor Relations Board - Administrative Judge Opinions

Oct 7, 2019

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CaseIQ

Shamrock Foods Company

National Labor Relations Board - Administrative Judge Opinions Oct 7, 2019

28-CA-150157 (N.L.R.B. Oct. 7, 2019)

JD(SF)–34–19 Phoenix, AZ UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES SHAMROCK FOODS COMPANY and Case 28–CA–150157 BAKERY, CONFECTIONERY, TOBACCO WORKERS’ AND GRAIN MILLERS INTERNATIONAL UNION, LOCAL UNION NO. 232, AFL-CIO-CLC Néstor M. Zárate Mancilla, Esq., for the General Counsel. Todd A. Dawson and Nancy Inesta, Esqs. (Baker & Hostetler, LLP), for the Respondent Company. David A. Rosenfeld, Esq. (Weinberg, Roger & Rosenfeld), for the Charging Party Union. SUPPLEMENTAL DECISION JEFFREY D. WEDEKIND, Administrative Law Judge. This case is on remand from the Board to reconsider whether the Respondent food distribution company maintained 14 overbroad rules in its January 2014 Associate Handbook in violation of Section 8(a)(1) of the National Labor Relations Act (NLRA). The Board severed the rules allegations from the numerous other Section 8(a)(1) and (3) allegations of the complaint in June 2018,1 and subsequently remanded them in January 20192 for further consideration under the new analytical framework announced in Boeing Co., 365 NLRB No. 154 (2017). Under that new framework, the Board first analyzes whether “a facially neutral policy, rule or handbook provision . . . when reasonably interpreted, would potentially interfere with the exercise of NLRA rights.” Id., slip op. at 3–4. If it would not, the rule is lawful. If it would, the Board will weigh any adverse impact on NLRA-protected conduct against the employer’s legitimate justifications for maintaining the rule. Id.3 Following the Board’s remand, on June 7, 2019, the General Counsel filed a motion to amend the complaint and to withdraw 10 of the 14 remanded rules allegations in light of Boeing. Absent any opposition, the motion was granted on July 8. This left for reconsideration only the following four handbook rules: (1) Protecting the Company’s Confidential Information; (2) Requests by Regulatory Authorities; (3) Blogging; and (4) No Solicitation, No Distribution. 1 Shamrock Foods Co., 366 NLRB No. 117 (2019), enfd. --- Fed. Appx. ---, 2019 WL 3229142 (D.C. Cir. July 12, 2019), rehearing en banc denied Sept. 6, 2019. My original decision addressing all the consolidated 8(a)(1) and (3) allegations, including the alleged overbroad rules, issued in February 2016 and is attached to the Board’s decision. 2 2019 WL 656281 (Jan. 9, 2019). 3 See also Southern Bakeries, LLC, 368 NLRB No. 59, slip op. at 1 (2019) (summarizing the new Boeing framework). JD(SF)–34–19 2 A hearing on remand to present additional relevant evidence regarding these four rules under the Boeing framework was held on August 26, 2019 in Phoenix, Arizona.4 The General Counsel, the Charging Party Union, and the Respondent Company subsequently filed briefs on September 30. As discussed below, two of the rules (Blogging and No Solicitation, No Distribution) are unlawfully overbroad under Boeing, and two (Protecting the Company’s 5 Confidential Information and Requests by Regulatory Authorities) are not. I. Protecting the Company’s Confidential Information The General Counsel alleges that the following provisions of the Company’s 10 confidential-information rule are unlawful under Boeing: The Company’s confidential information is a valuable asset and includes: information, knowledge, or data concerning . . . associates, . . . Company manuals and policies, . . . [and] compensation schedules . . . 515 . . . All confidential information must be used for Company business purposes only. Every associate, agent, and contractor must safeguard it. THIS RESPONSIBILITY INCLUDES NOT DISCLOSING THE COMPANY CONFIDENTIAL INFORMATION, INCLUDING INFORMATION 20 REGARDING THE COMPANY’S PRODUCTS OR BUSINESS, OVER THE INTERNET, INCLUDING THROUGH SOCIAL MEDIA. The General Counsel argues that the foregoing provisions, as reasonably interpreted, interfere with the employees’ fundamental rights under the Act to communicate with third parties, 25 including labor organizations, government agencies, and the public, about their wages, hours, and other employment terms and conditions, including those addressed in the Associate Handbook itself. However, as indicated by the Company, handbook rule provisions must be read and 30 evaluated in context rather than in isolation. See, e.g., Tradesmen Int’l, 338 NLRB 460, 461– 462 (2002); Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. mem. 203 F.3d 52 (D.C. 4 The parties were allowed to present evidence at the hearing on remand relevant to both (1) the nature and extent of the potential impact of the rules on NLRA rights, and (2) legitimate justifications associated with the rules. The Company’s request that the hearing on remand be limited to the latter was denied. See my May 15, 2019 order (GC Exh. 30(f)), citing Boeing, slip op. at 15–16 (“Parties may also introduce evidence regarding a particular rule's impact on protected rights or the work-related justifications for the rule. The Board may also draw reasonable distinctions between or among different industries and work settings. We may also take into consideration particular events that may shed light on the purpose or purposes served by the challenged rule or on the impact of its maintenance on protected rights."). 5 As discussed infra, this paragraph of the rule also identifies as confidential numerous other types of information, including “calendars and/or day-timers that contain customer contact and other customer information.” Although the original complaint alleged that this quoted additional language was also unlawful, the General Counsel moved at the hearing on remand to further amend the complaint to withdraw that allegation and the motion was granted in the absence of any objection (Tr. 11–12). JD(SF)–34–19 3 Cir. 1999); and Aroostook County Regional Ophthalmology Center v. NLRB, 81 F.3d 209 (D.C. Cir. 1996).6 Here, the full text of the confidential-information rule indicates that it applies, not to employee wages, hours, and other terms and conditions of employment that the Company widely 5 circulates to employees, but to confidential proprietary business information or employee private information that has not been voluntarily disclosed to coworkers such as employee addresses, phone numbers, social security numbers, and direct deposit banking information. This is evident from the following additional types of confidential information listed in the first paragraph (which the General Counsel does not challenge):10 costs, commission reports or payments, purchasing, profits, markets, sales, discounts, margins, customer histories or preferences, relationships with vendors, organization structures, . . . customers, surveys, customer lists, lists of prospective customers, customer account records, marketing plans or efforts, sales records, 15 training and service materials, . . . computer programs, software and disks, order guides, financial statements and projections, business plans, budgets, supplier lists, contracts, calendars and/or day-timers that contain customer contact and other customer information, . . . proposals and quotes for business, notes regarding customers and prospective customers and pricing information. 20 It is also evident from the very next sentence at the beginning of the next paragraph, which states, “This information is the property of the Company and may be protected by patent, trademark, copyright and trade secret laws.” Cf. MediaOne of Greater Florida, Inc., 340 NLRB 277, 279 (2003) (finding that the employer’s nondisclosure rule was lawful notwithstanding that 25 it included “employee information” because the rule addressed disclosure of “proprietary information, including information assets and intellectual property,” and “employee information” was listed as an example of “intellectual property.”). This reading of the rule is further supported by evidence developed at the hearing on 30 remand. For example, Jim Kramer, who is the Company’s vice president of people operations and has worked for Shamrock since May 2015, testified that the Company does not consider the Associate Handbook to be a confidential “manual” or compilation of confidential “policies” as there is nothing confidential about the information in it (Tr. 100, 119–120).7 As for “compensation schedules,” Kramer testified that they are not the same as wage rates. Rather, 35 they also include the formulae developed and implemented by Shamrock to calculate employee incentive pay, which is paid to the warehousemen and drivers in addition to their base rate to encourage them to increase their productivity and decrease their mistakes. The formulae (such as the pace or number of picks and the number of mistakes or mispicks) vary by job, 6 Although the court in Aroostook denied enforcement of the Board’s decision in relevant part, the court’s opinion was later cited with approval in both Lafayette Park and Tradesmen. 7 Former Senior HR Vice President Robert Beake, who worked for the Company in that capacity through about August 2014 and was subpoenaed by the General Counsel, testified to the contrary—that the handbook would be considered confidential by the Company (Tr. 64). However, he never explained why or the foundation or basis for his testimony. And there is no evidence employees have ever been specifically told the handbook is confidential. Accordingly, his testimony has been given less weight. JD(SF)–34–19 4 responsibility, and location, and as indicated in the rule are considered confidential proprietary information. Accordingly, they are not provided to the employees. Employees are only provided with their own incentive pay and the basis for that amount (e.g., their own productivity and mistakes), which they are free to share with anyone. They are not provided with the schedules. (Tr. 101–106, 126–129.) See Macy’s, Inc., 365 NLRB No. 116, slip op. at 4 (2017) 5 (an employer may lawfully prohibit employees from revealing confidential information in its files even if that information could be used by employees for the purpose of appealing to third parties regarding a labor dispute or their terms and conditions of employment with the employer). 10 Moreover, the handbook includes a full-page notice at the end advising employees of their rights under the Act. The notice, which is listed in the handbook’s table of contents as a “Government Required Posting,” is the standard notice of employee rights that was adopted by the U.S. Department of Labor (DOL) for posting by federal contractors and subcontractors pursuant to Presidential Executive Order 13496 (Jan. 30, 2009). See the DOL website at: 15 https://www.dol.gov/olms/regs/compliance/EO13496.htm.8 The notice describes in detail employees’ rights under the Act, including their rights to discuss their “terms and conditions of employment or union organizing with [their] coworkers or a union” and to “rais[e] work-related issues . . . with a government agency” (GC Exh. 3, p. 85). 20 The notice is not referenced in the rule or otherwise proximately placed or prominently flagged in the handbook. It is therefore insufficient by itself under past Board decisions to find the rule lawful. Compare Wendy’s Restaurant, 368 NLRB No. 72, slip op at 2–3 (2019) (finding that the employer’s mandatory arbitration agreements were lawful because they included and prominently referenced a savings clause that preserved the right of employees to file NLRB 25 charges or participate in an NLRB investigation), with G4S Secure Solutions (USA) Inc., 364 NLRB No. 92, slip op. at 6 (2016) (finding the employer’s social networking policy unlawful notwithstanding that it included a vague disclaimer stating that the policy would not be construed or applied to interfere with employee rights under “federal law” and that the employer also posted the full-page DOL notice informing employees of their rights under the Act), enfd. 707 30 Fed. Appx. 610 (11th Cir. 2017), and First Transit, Inc., 360 NLRB 619, 621–622 (2014) (finding various handbook rules unlawful, notwithstanding that the handbook included a “freedom of association” policy notifying employees of their organizational rights under the Act, because, among other things, the policy was too narrow, not referenced in the rules, and neither prominent nor proximate to them). Nevertheless, it is a relevant consideration in addition to the 35 circumstances discussed above. Accordingly, contrary to the General Counsel the confidential-information rule provisions as reasonably interpreted would not potentially interfere with employee rights under the Act. The provisions are therefore not unlawful under Boeing. 40 8 The NLRB essentially adopted the same notice when it issued its August 30, 2011 final rule requiring all covered employers to post such notices. See 76 FR 54006-01; and the NLRB website at: https://www.nlrb.gov/news-publications/publications/employee-rights-poster. However, the Board’s rule was subsequently invalidated by the courts. See National Assn. of Manufacturers v. NLRB, 717 F.3d 947 (D.C. Cir. 2013); and Chamber of Commerce of the U.S. v. NLRB, 721 F.3d 152 (4th Cir. 2013). JD(SF)–34–19 5 II. Requests by Regulatory Authorities The General Counsel alleges that the following sentence in the Company’s rule regarding requests by regulatory authorities is unlawful under Boeing: 5 All government requests for information, documents or investigative interviews must be referred to the Company’s Human Resources Department. The General Counsel argues that this broadly worded provision would reasonably be interpreted to prohibit employees from providing evidence or otherwise cooperating in an NLRB 10 investigation without notifying the employer. Reading the provision in isolation, the General Counsel’s argument is supported by Board law. See DirectTV U.S., 359 NLRB 545, 546 (2013) (employer’s handbook rule requiring employees to contact the security department if law enforcement wanted to interview or obtain 15 information from them regarding an employee would reasonably be construed to apply to inquiries from NLRB officials about employee wages, hours, and working conditions), reaffd. 362 NLRB 415 (2015), enf. denied on other grounds 650 Fed. Appx. 846 (5th Cir. 2016); and Management Consulting, Inc., 349 NLRB 249 (2007), and cases cited there (employer statements that discourage employees from providing information to the NLRB and hinder its20 investigation of unfair labor practice charges violate Section 8(a)(1) of the Act).9 However, as discussed above, the provision must be considered in context.10 The full text of the rule reads as follows: 25 The Company and its associates must cooperate with appropriate government inquiries and investigations. In this context, however, it is important to protect the legal rights of the Company with respect to its confidential information. All government requests for information, documents or investigative interviews must be referred to the Company’s Human Resources Department. No financial 30 information may be disclosed without the prior approval of the Company’s President or Chief Financial Officer. Further, the rule is actually a subsection of a section titled “Handling the Confidential Information of Others.” The introductory paragraph of that section indicates that it deals with 35 confidential information provided to the Company by “third party” companies and individuals that the Company has, or may eventually have, “business relationships” with. Cf. Macy’s, above (finding lawful the employer’s rule prohibiting the disclosure of information in its confidential records regarding the company’s customers and business partners without prior approval of a 9 See also In re FCA US LLC Monostable Electronic Gearshift Litigation, 2018 WL 4352702, at *4 (E.D. Mich. Sept. 12, 2018), and cases cited there (“all” means all). 10 See also DeKalb County v. Federal Housing Finance Agency, 741 F.3d 795, 799 (7th Cir. 2013) (there are often implicit exceptions to “all”); and Energy Consulting & Management v. Western States Equipment Co., 2012 WL 4470869, at *3 (D. Idaho Sept. 27, 2012) (rejecting argument that the phrase “any and all” in a trust agreement meant all, as such a construction disregarded other parts of the agreement), affd. 574 Fed. Appx. 763 (9th Cir. May 21, 2014). JD(SF)–34–19 6 supervisor and consultation with the law department because it would not reasonably be construed to prohibit protected activity under the Act). Moreover, as discussed above, the handbook includes a full-page notice at the end advising employees of their rights under the Act, including specifically their right to “rais[e]5 work-related issues . . . with a government agency.” The notice also specifically states, “[I]f you believe your rights or the rights of others have been violated, you should contact the NLRB promptly . . . You may inquire about possible violations without your employer or anyone else being informed of the inquiry.” Again, while the notice is not enough by itself to find the rule lawful, it is a relevant consideration in addition to the circumstances discussed above. 10 Thus, although the rule could have been worded better,11 as reasonably construed in context the rule would not potentially interfere with the employees’ right to provide information to the NLRB regarding their wages, hours, and working conditions. Accordingly, the rule is not unlawful under Boeing. 15 III. Blogging The General Counsel alleges that the following provisions of the Company’s blogging rule are unlawful under Boeing:20 The following rules and guidelines apply to blogging, whether blogging is done for Shamrock on company time, on a personal Web site during non-work time, or outside the workplace. The rules and guidelines apply to all associates. 25 [1]12 Shamrock discourages associates from discussing publicly any work-related matters, whether confidential or not, outside company-authorized communications. Nonofficial company communications include Internet chat rooms, associates’ personal blogs and similar forms of online journals or diaries, personal newsletters on the Internet, and blogs on Web sites not affiliated with, 30 sponsored, or maintained by Shamrock. [2] Associates have a duty to protect associates’ home addresses . . . and other personal information and . . . financial information . . . and nonpublic company information that associates can access.35 * * * [10] Shamrock discourages associates from linking to Shamrock’s external or internal Web site from personal blogs.13 11 Company Vice President Kramer conceded this at the hearing on remand (Tr. 131–132). 12 The paragraphs are not numbered in the handbook but are numbered here for ease of reference. 13 The original complaint alleged that the third, sixth, seventh, and eighth paragraphs of the blogging rule are also unlawful. However, those allegations were withdrawn pursuant to the General Counsel’s June 7, 2019 motion to amend. JD(SF)–34–19 7 At the hearing on remand, the Company admitted that the first paragraph (par. [1]) of the rule is unlawful (Tr. 8). Accordingly, the Company’s maintenance of that provision violated Section 8(a)(1) of the Act as alleged. As for the second paragraph, the General Counsel argues that the provision as reasonably 5 interpreted unlawfully restricts employees’ use of employee addresses and personal and financial information. However, again, the quoted language must be considered in context. The full text of the paragraph states: Associates have a duty to protect associates’ home addresses, social security 10 numbers, birth date, driver’s license number, and other personal information and the confidentiality of Shamrock trade secrets, marketing lists, customer account information, strategic business plans, competitor intelligence, financial information, business contracts, and other proprietary and nonpublic company information that associates can access.15 Considered as a whole, like the confidentiality rules discussed above, this provision as reasonably interpreted only restricts the disclosure of “personal,” “proprietary,” and “nonpublic” information contained in the Company’s confidential or private files. Accordingly, it would not interfere with employee rights under the Act and is not unlawful under Boeing. See Macy’s, 20 above. See also Cook County College Teachers Union, 331 NLRB 118, 121 (2000), discussing Roadway Express, 271 NLRB 1238, 1239 n. 11 (1984) and Ridgely Mfg. Co., 207 NLRB 193, 197 (1973) (employees do not have a protected right to access and disclose information contained in the employer’s confidential or private files regarding employees’ names and addresses). 25 However, a different conclusion is warranted with respect to the tenth paragraph’s restriction on including a link to the Company external or internal website. As indicated by the General Counsel, employees have a right under the Act to use social media to communicate with each other and with the public to improve their terms and conditions of employment. See, e.g., 30 Three D, LLC, 361 NLRB 308 (2014), affd. 629 Fed. Appx. 33 (2d Cir. 2015). On its face the tenth paragraph of the blogging rule potentially interferes with that right by effectively discouraging employees from using the common and most efficient method of identifying and directing coworkers and others to the Company’s website to obtain further information and communicate directly with the Company in support of the employees’ work-related concerns or 35 disputes. Cf. UPMC, 362 NLRB 1704, 1704–1705 and n. 5 (2015) (employer’s prohibition against employees using its logos or other copyrighted or trademarked materials on social media unlawfully interfered with employee rights under the Act).14 14 Although the rule states that the Company “discourages” (rather than “prohibits”) such website links, this makes no difference. See Radisson Plaza Minneapolis, 307 NLRB 94 (1992) (whether a rule is unlawful “is not premised on mandatory phrasing”), enfd. 987 F.2d 1376 (8th Cir. 1993). Compare also Heck's, Inc., 293 NLRB 1111, 1114, 1119 (1989) (finding unlawful the employer's “request” that employees not discuss their salary); and NLRB v. Koronis Parts, Inc., 927 F. Supp. 1208 (D. Minn. 1996) (granting the Board's request for interim injunction requiring the employer to revoke a handbook provision that “ask[ed]” employees not to discuss their wages with other employees). And the Company does not argue otherwise. JD(SF)–34–19 8 The Company argues that the provision is saved by the very next paragraph of the blogging rule which states, “Shamrock will not construe this policy nor apply it in a manner that interferes with associates’ rights under Section 7 of the NLRA.” However, this general statement says nothing about whether including a link to the Company website on a blog is a right protected by the NLRA. Thus, it is insufficient under past Board decisions. See Solar City 5 Corp., 363 NLRB No. 83, slip op. at 5 (2015), and cases cited there. The Company also argues that the provision is clarified by the full-page notice of employee rights under the Act that is included at the end of the handbook. However, while more detailed, that notice also does not address employees’ use of social media or their right to include 10 a link to an employer’s website on a blog. Moreover, the notice is not referenced in the rule and, as discussed above, is neither proximately placed nor prominently flagged in the handbook. Thus, it is likewise insufficient by itself under past Board decisions to save the provision. Finally, contrary to the Company’s contention, the provision’s impact on employee 15 rights is not outweighed by legitimate justifications associated with the rule. The justification presented at the hearing on remand was that the Company wants to protect its brand from being associated with racist or other offensive blogs (Tr. 134–135). However, the Company’s concern about being associated with views expressed on employee blogs is directly addressed in the fourth paragraph of the rule, which states:20 Associates who maintain blogs on their own or another Web site and choose to identify themselves as associates of Shamrock are strongly encouraged to state explicitly, clearly, and in a prominent place on the site that views expressed in their blogs are associates’ own and not those of Shamrock or of any person or 25 organization affiliated or doing business with Shamrock. The tenth paragraph sweeps far more broadly, discouraging employees from including a link where readers can access an employer’s website regardless of the employee’s reason for doing so or the context or manner in which the employee does so. Thus, the Company’s asserted 30 justification is insufficient to legitimize the rule. See Quicken Loans, Inc. v. NLRB, 830 F.3d 542, 549 (2016) (“Quicken’s claim that some sub-portion of the covered information could properly be protected does nothing to legitimate the blunderbuss sweep of its existing rule.”). Accordingly, the provision is unlawful under Boeing. 35 IV. No Solicitation, No Distribution The General Counsel alleges that the following provisions in the first two paragraphs of the Company’s no solicitation, no distribution rule are unlawful: 40 [T]he conducting of non-company business related activities is prohibited during the working time by either the associate doing the soliciting or the associate being solicited or at any time in customer or public areas. Associates may not solicit other associates under any circumstances for any non-company related activities. JD(SF)–34–19 9 The distribution of non-company literature, such as leaflets, letters or other written materials by an associate is not permitted . . . any time in working areas or in customer and public areas.15 At the hearing on remand, the Company admitted that the foregoing provisions of the rule are 5 unlawful (Tr. 9). Accordingly, the Company’s maintenance of those provisions violated Section 8(a)(1) of the Act as alleged. CONCLUSIONS OF LAW 10 1. The Company violated Section 8(a)(1) of the Act by maintaining the following provisions in its 2014 Associate Handbook since at least October 15, 2014: a. a Blogging rule that broadly discourages employees from publicly discussing on the internet “any work-related matters, whether confidential or not, outside company-authorized 15 communications” and “linking to Shamrock’s external or internal Web site from personal blogs.” b. an overbroad No Solicitation, No Distribution rule. 2. The Company’s foregoing unfair labor practices affect commerce within the meaning 20 of Section 2(2) and 2(7) of the Act. 3. The Company has not violated the Act by maintaining in its 2014 Associate Handbook other provisions in its rules on Blogging, Protecting the Company’s Confidential Information, and Requests by Regulatory Authorities.25 REMEDY The appropriate remedy for the violations found is an order requiring the Company to cease and desist from its unlawful conduct and to take certain affirmative action. Specifically, to 30 the extent it has not already done so,16 the Company must rescind its unlawful Blogging and No Solicitation, No Distribution rules, notify all employees in writing that it has done so, and republish its employee handbook without the rules or supply employees with inserts to the handbook which state that the unlawful rules have been rescinded or set forth new and lawfully worded rules on adhesive backing that will correct or cover the unlawful rules. The Company 35 must also post a notice at all its locations in both English and Spanish notifying employees of their rights under the Act and this decision and order. See, e.g., Core Recoveries, LLC, 367 NLRB No. 140 (2019); and Guardsmark, LLC, 344 NLRB 809, 812 (2005), enfd. in relevant part 475 F.3d 369, 380–381 (D.C. Cir. 2007). 40 15 The original complaint also alleged that certain provisions in the third paragraph of the rule are unlawful. However, that allegation was withdrawn pursuant to the General Counsel’s June 7, 2019 motion to amend. 16 The record on remand indicates that the Company issued a substantially revised handbook in June 2017, which “supersede[d]” the 2014 handbook and was distributed to employees and posted electronically. See Tr. 91–95; and R. Exh. 100. JD(SF)–34–19 10 The Company’s posthearing brief argues that requiring the notice to be posted at all its facilities is improper because (1) the General Counsel and the Union did not except to my original February 11, 2016 recommended order requiring the notice to be posted only at the Phoenix, Arizona warehouse (the record at that time did not include any evidence that the 2014 Associate Handbook was applicable at Shamrock’s other warehouses); and (2) the Board’s 5 remand was limited to reconsidering whether the subject 2014 handbook rules are unlawful and did not include whether the original remedy was appropriate. There is some case support for the Company’s position. See Colonna’s Shipyard, 293 NLRB 136 n. 2 (1989) (upholding the ALJ’s refusal in his supplemental decision to grant a 10 general bargaining order given the limited scope of the Board’s remand order and the absence of any exceptions to the judge’s original order). But see McBurney Corp., 352 NLRB 241 n. 4 (2008) (Members Liebman and Schaumber) (“remedial issues are always before the Board” regardless of whether they were raised in exceptions or included within the scope of the Board’s prior remand order), invalidated for lack of a quorum by NLRB v. Noel Canning, 573 U.S. 513 15 (2014). However, in Colonna’s Shipyard no additional evidence supporting the requested bargaining order was presented on remand. Here, in contrast, the General Counsel presented evidence at the hearing on remand regarding the handbook’s application at all of the Company’s 20 other facilities. Further, the Company stated no objection to receiving that evidence at the time. Indeed, company counsel indicated a willingness to stipulate that the handbook was applied at other facilities. See Tr. 34–40. Accordingly, the Company’s argument is rejected. Finally, the General Counsel and the Union also request certain special notice and other 25 remedies. However, none of these requested special remedies is supported by Board precedent in the circumstances or on the grounds asserted by the General Counsel and/or the Union here. Accordingly, the requested special remedies are denied. ORDER1730 The Respondent, Shamrock Foods Company, Phoenix, Arizona, its officers, agents, successors, and assigns, shall 1. Cease and desist from35 (a) Maintaining Blogging and No Solicitation, No Distribution rules that unlawfully interfere with the exercise of employee rights under Section 7 of the Act. (b) In any like or related manner restraining or coercing employees in the exercise of 40 the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. JD(SF)–34–19 11 (a) To the extent it has not already done so, rescind the unlawful Blogging and No Solicitation, No Distribution rules in its 2014 Associate Handbook, revise the handbook to delete the unlawful rules, advise employees in writing that it has done so and that the rules will no longer be enforced, and republish its handbook without the unlawful rules or provide employees with inserts to the handbook which state that those rules have been rescinded or set forth new 5 and lawfully worded rules on adhesive backing that will correct or cover the unlawful rules. (b) Within 14 days after service by the Region, post at its Phoenix, Arizona warehouse, and all other Company facilities nationwide where the unlawful rules have been maintained, copies of the attached notice marked “Appendix” in both English and Spanish.18 10 Copies of the notices, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, the English and Spanish notices shall be distributed electronically, such as by email, posting on an intranet or 15 an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, Respondent has gone out of business or closed a facility, Respondent shall duplicate and mail, at its own expense, a copy of the notices to all current and 20 former employees employed by Respondent at the closed facility or facilities at any time since October 15, 2014. (c) 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 25 steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the amended complaint is dismissed to the extent it alleges that rule provisions other than those specifically found unlawful also violated the Act. 30 Dated, Washington, D.C., October 7, 2019 Jeffrey D. Wedekind Administrative Law Judge35 18 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” c ".--4-f APPENDIX NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities. WE WILL NOT maintain a Blogging rule that discourages you from publicly discussing on the internet any work-related matters, whether confidential or not, outside company-authorized communications and linking to our external or internal Web site from personal blogs. WE WILL NOT maintain a No Solicitation, No Distribution rule that unlawfully interferes with your exercise of the rights listed above. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights listed above. WE WILL, to the extent we have not already done so, rescind the unlawful Blogging and No Solicitation, No Distribution rules in our 2014 Associate Handbook, revise that handbook to delete the unlawful rules, advise you in writing that we have done so and that the rules will no longer be enforced, and republish our handbook without the unlawful rules or provide you with inserts to the handbook which state that those rules have been rescinded or set forth new and lawfully worded rules on adhesive backing that will correct or cover the unlawful rules. SHAMROCK FOODS COMPANY (Employer) Dated By (Representative) (Title) The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. 2600 North Central Avenue, Suite 1800, Phoenix, AZ 85004-3099 (602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m. The Administrative Law Judge's decision can be found at www.nlrb.gov/case/28-CA-150157 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (602) 640-2146.