NLRB Advice Memoranda, Centura, National Labor Relations Board, (Jun 24, 2019)

The Region submitted this case for advice as to whether the Employer violated Section 8(a)(1) of the Act when it discharged the Charging Party, who worked in its human resources department, based on its belief that the Charging Party shared wage information with fellow employees that improperly obtained through position. We conclude that the Employer lawfully discharged the Charging Party based on a reasonable belief that the Charging Party engaged in misconduct by breaching the confidentiality required in position. Accordingly, absent withdrawal, the charge should be dismissed.

FACTS

The Charging Party was employed by Centura (“Employer”) as a in the Recruitment Department, which is part of the Employer's human resources division. duties included “onboarding” new employees and current employees who changed positions. The Charging Party's duties allowed access to, inter alia, employees' wage information and understood that the information was confidential. [1]

Around the end of May 2018 [2] , the Charging Party told supervisor that was interested in moving to a new position with higher pay. [3] The supervisor suggested that the Charging Party seek an Executive Assistant (“EA”) position and advised to meet with an internal recruiter. The Charging Party subsequently met with a recruiter to discuss open EA positions, which the recruiter informed the Charging Party had a starting wage rate of $25 per hour. [4]

The Charging Party applied to two open EA positions. For the first opening, the Charging Party Contacted the employee who previously held the position and was the position's . The first EA position was ultimately put on hold and remained unfilled. The Charging Party then applied for a second EA position and contacted the appropriate hiring manager. The Charging Party discussed the second position with another employee who was applying for the same opening. claims that they discussed only the fact that they were each granted an interview for the EA position and specifically denies they discussed EA wage rates.

The Employer maintains an “Integrity Hotline” that has an online employee website that allows its employees to make anonymous reports regarding issues of concern. On July 30, the Employer received an anonymous report via its hotline claiming that the Charging Party had,

“…on two occasions, (to myself), diclosed sic] exact salaries of others while discussing own desire for personal advancement. has stated: ‘I have access to these things. That is the one benefit to working in .’ There are others that have expressed that has been innaproporiate [sic] and and [sic] crossed the line in what discloses. has checked to see who is applying for jobs, and relayed that information as well … [Charging Party] came to me and said that was applying for a job, because someone at another location [i.e., the employee who previously held the first EA position] with the same title was making $38.00/hr[.]”

A subsequent hotline report was filed on August 1, stating, “I have learned that [Charging Party] has also spoken to [the employee who also applied for the second EA position] regarding positions, and salaries of others.”

The Employer met with the Charging Party and asked whether had shared confidential information with anyone. Although the Charging Party denied sharing confidential information, the Employer continued to press on whether divulged confidential information, specifically wage rates. According to the Charging Party, continued to deny the accusations. At the end of the meeting the Employer suspended the Charging Party without pay pending an investigation.

The Employer's investigation included meetings with other employees. According to the Employer, those employees claimed that the Charging Party had relayed wage information to them and told them that EA's make more money. According to the Employer's notes from its interviews, the employees stated that the Charging Party told other employees that the wage rate earned by the former EA for the first position applied for was between $32 to $38 per hour. According to the employees, they did not engage with the Charging Party and sought to keep their distance.

Based on its investigation, on the Employer terminated the Charging Party for violating its integrity standard by divulging confidential information and because it lost confidence that the Charging Party could continue to effectively do job within the Employer's confidentiality expectations.

The Charging Party testified that had no conversations with employees about wage rates or other confidential information, or EA applications, and that wanted to keep quiet the fact that was looking for a new position. Instead, the Charging Party testified that the only employee with whom discussed the EA position was the employee who was applying for the same position, and that those discussions were about keeping each other appraised of their respective interview schedules and any additional EA openings.

ACTION

We conclude that the Employer's termination of the . Charging Party did not violate Section 8(a)(1) because the Employer discharged based on a reasonable belief that the Charging Party inappropriately divulged confidential information obtained through human resources position. Further, assuming the Charging Party's assertions about own statements are accurate, the Charging Party did not discuss wages with fellow employees and communications with coworkers thus did not constitute protected concerted activity. Accordingly, absent withdrawal, the charge should be dismissed.

An employer may lawfully terminate an employee based on a mistaken belief of misconduct as long as the employer's belief regarding the conduct does not relate to Section 7 activity. [5] In Yuker Construction, the Board agreed with the ALJ's characterization that the employer “shot from the hip” by acting hastily on its mistaken belief that two employees were seeking other employment, while being paid by the employer, but that such conduct did not constitute an unfair labor practice because the employer's decision was not based on protected activity. [6]

“Employees are entitled to use for [NLRA] purposes information and knowledge which comes to their attention in the normal course of work activity and association ….” [7] Employees are not, however, engaged in protected conduct when they go outside their normal work activity to obtain an employer's confidential information, even when they use it to support otherwise legitimate Section 7 activity. [8]

Here, there is no evidence that the Employer regarded the Charging Party's actions as relating to Section 7 activity. [9] Instead, the Employer reasonably believed, based on the hotline tips, and meetings with the Charging Party and other employees, that the Charging Party misappropriated confidential wage records, which had access to by virtue of job, but which were unrelated to normal work activity. [10] The Employer also reasonably believed the Charging Party violated the Employer's prohibition against employees in position—i.e., with special access to confidential employer information such as these wage rates—divulging that information, and that it terminated solely for that reason. [11] Like in Yuker, whether or not the Employer was ultimately mistaken in its conclusion that the Charging Party abused position by divulging wage rates, termination was not unlawful because it was based on that conclusion and not on any actual or perceived Section 7 activity.

We further note that the Charging Party's own description of communications with coworkers did not constitute protected concerted activity. For employee conduct to be protected under Section 7, it must be both concerted and pursued either for collective-bargaining purposes or for other “mutual aid or protection.” [12] An individual employee's conduct is concerted when it is “engaged in with or on the authority of other employees,” or when an individual employee seeks “to initiate or to induce or to prepare for group action” or to bring group complaints to management's attention. [13] Here, the Charging Party herself testified that did not discuss wage rates with other employees and that did not want coworkers to know that was seeking a new position. Moreover, by own admission discussions were not pursued for “mutual aid or protection.” Rather, herself stated that discussions about the EA position with the employee who was applying for the same position were merely for the purpose of keeping each other apprised of interview dates and of any new EA openings.

Accordingly, for the foregoing reasons, the charge should be dismissed, absent withdrawal.

/s/

J.L.S.

H: ADV.27-CA-234214.Response.Centura .doc