NLRB Advice Memoranda, Crosby's Drugs, Inc., National Labor Relations Board, (Aug 23, 2022)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

The Region submitted this case for advice as to whether it should allege that the Employer violated Section 8(a)(1) of the Act by terminating the Charging Party for engaging in the “inherently concerted” activities of raising complaints of gender ​     ​ discrimination in the workplace and refusing to remove ​     ​ pronouns from ​     ​ email signature after repeated Employer demands for ​     ​ to do so.

We conclude initially that the Charging Party engaged in concerted activity for the purpose of mutual aid or protection under current law because ​     ​ had discussions with coworker about workplace gender ​     ​ discrimination and wages contemporaneous to ​     ​ engagement in related protected activities. However, the Region should also use this case as a vehicle to urge the Board to overrule its decision in Alstate Maintenance [1] and broadly interpret what constitutes protected concerted activity as set forth in Starfish Family Services, Inc. Case 07-CA-278787, Significant Advice Memorandum, dated Dec. 6, 2021. Second, ​     ​ we conclude that the Charging Party's workplace conduct over gender ​     ​ discrimination constituted inherently concerted activity. Third, we conclude that the Employer violated Section 8(a)(1) when it terminated the Charging Party because of ​     ​ protected concerted activity regarding how the Employer compensated employees and gender ​     ​ discrimination. Fourth, we conclude that the Employer unlawfully promulgated an email policy in response to the Charging Party's protected concerted activity of including ​     ​ pronouns in ​     ​ email signature. The Region should also use this case as a vehicle to overrule Rio All-Suites [2] as set forth in Northstar Insurance Advisors, LLC, Case 14-CA-285828, Significant Advice Memorandum dated July 19, 2022. Finally, we conclude that the Employer violated Section 8(a)(1) when it threatened the Charging Party with termination for raising a group complaint regarding wages with the Employer.

FACTS

Crosby's Drugs, Inc. (“the Employer”) operates a retail and long-term care pharmacy in Columbus, Ohio. The Charging Party, ​     ​ began working for the Employer sometime in late ​     ​. [3] ​     ​ was hired to work in ​     ​ of the pharmacy that employed around eight people in total. Shortly after being hired, ​     ​ began discussing wages with ​     ​ coworkers despite an Employer handbook policy prohibiting employees from discussing wages with one another. [4] Through these discussions, the Charging Party learned that a newly hired employee was being paid more than longer-term employees and that several of ​     ​ coworkers were uncertain about whether the Employer was paying them for work occurring after 5:30pm.

On ​     ​ [5] the Charging Party approached ​     ​ about whether ​     ​ and ​     ​ coworkers were being paid for work occurring after 5:30 PM. [6] During this discussion ​     ​, grew angry and stated that if the Charging Party was accusing ​     ​ of wage theft, ​     ​ could find another job. ​     ​ also asked the charging Party whether ​     ​ and ​     ​ coworkers had been discussing this issue together, and the Charging Party answered that they were.

The following day, ​     ​, ​     ​ held a meeting with employees in ​     ​ of the pharmacy to discuss the wage issue the Charging Party had brought to ​     ​ attention. Although ​     ​ did not mention the Charging Party by name, ​     ​ did claim that ​     ​ had been accused of wage theft by an employee, and that, because of this, ​     ​ felt the need to explain the Employer's policy on wages for work occurring after 5:30 PM. During this meeting, the Charging Party and ​     ​ coworkers created a system to account for work occurring after 5:30 PM.

On ​     ​ the Charging Party ​     ​ to ​     ​ Employer as ​     ​. The following day, ​     ​ met with the Employer's entire management team to produce an Employer-approved plan to ​     ​ to ​     ​ coworkers. Throughout this meeting, members of management continued to ​     ​ to the Charging Party with ​     ​ against ​     ​ wishes. The plan the parties eventually agreed to consisted of the Charging Party drafting an email to be reviewed by management and distributed by the Charging Party to the entire staff. After the Charging Party sent out ​     ​ email, several coworkers expressed their support for ​     ​ ​     ​

Subsequently, the Charging Party reported several incidents to the Employer about coworkers and members of management ​     ​ or otherwise treating ​     ​ with disrespect. ​     ​ also discussed these incidents with a few of ​     ​ coworkers over a Facebook groupchat. In general, ​     ​ coworkers responded to the Charging Party's complaints with support and shared outrage.

In ​     ​, the Charging Party added pronouns to ​     ​ employee email signature in an attempt to prevent people, including ​     ​ coworkers and members of management, from ​     ​. Shortly thereafter, nurse working at a facility that did business with the Employer added pronouns to ​     ​ email signature as well.

On ​     ​, one of the Charging Party's coworkers emailed ​     ​ about a possible wage increase. By mistake, ​     ​ sent this email to the entire staff. The next day, ​     ​ sent all employees an email stating that ​     ​ realized that people were discussing wages and that they could be fired for doing so according to the Employer's zero tolerance policy on the issue. [7]

In ​     ​ the Charging Party emailed ​     ​ to request ​     ​ paystubs. ​     ​ replied to this email by stating that it would be a lot of work for the Employer to produce the Charging Party's paystubs. At the Charging Party's insistence ​     ​ provided the paystubs to​     ​ in person. Later, on either that day or the next, ​     ​ sent out an email to the entire staff directing them to remove their profile pictures and to change their email signatures to be professional. ​     ​ included a sample signature in the email. It did not provide an area for pronouns. In response to this email, the Charging Party changed ​     ​ signature to match ​     ​ sample but did not remove ​     ​ pronouns.

On ​     ​ a supervisor approached the Charging Party and told ​     ​ that ​     ​ had sent ​     ​ to tell ​     ​ that having ​     ​ pronouns in ​     ​ email signature was against Employer policy. The Charging Party responded by saying that ​     ​ would not remove ​     ​ pronouns until ​     ​ saw this policy in writing. The supervisor expressed ​     ​ sympathy and told the Charging Party that ​     ​ would speak to ​     ​ about it.

The next morning, on ​     ​, the Charging Party messaged ​     ​ coworkers through their groupchat and asked them to take bets on whether or not ​     ​ would be terminated for keeping ​     ​ pronouns in ​     ​ mail signature. ​     ​ coworkers responded with their support. One urged ​     ​ to fight management with full force in the event that the Charging Party was discharged. The Employer then called the Charging Party into a conference room with ​     ​ and another member of management present.

After joining the meeting, ​     ​ demanded that the Charging Party remove ​     ​ pronouns from ​     ​ email signature. The Charging Party again requested the Employer's policy on email signatures in writing, but ​     ​ refused and told ​     ​ that the policy had already been sent out in the email that included a sample signature. The Charging Party explained that ​     ​ deserved to be treated with respect and like a human being. ​     ​ pointed out that ​     ​ had ​     ​ at the beginning of this meeting and that being ​     ​ dehumanized ​     ​ responded to this by expressing their frustration with the Charging Party constantly challenging them and argued that ​     ​ pronouns had nothing to do with their business. ​     ​ claimed that because they owned the email system, they had the right to determine what the Charging Party could and could not have in ​     ​ email signature. ​     ​ repeated their demand for the Charging Party to remove ​     ​ pronouns from ​     ​ email signature, and the Charging Party again refused. In response, ​     ​ accused the Charging Party of being insubordinate and terminated ​     ​ A member of management then escorted the Charging Party from the building.

On December 29, the Charging Party filed the current charge. The Region already has found merit to two allegations in the charge, specifically that the Employer maintained an unlawful work rule that prohibited employees from discussing wages, and, on ​     ​ threatened employees with termination by email for discussing wages with one another. On January 6, 2022, the Charging Party filed a complaint with the EEOC.

ACTION

We conclude initially that the Charging Party engaged in concerted activity for the purpose of mutual aid or protection under current law because ​     ​ had discussions with coworker about workplace gender ​     ​ discrimination and wages contemporaneous to ​     ​ engagement in related protected activities. However, the Region should also use this case as a vehicle to urge the Board to overrule its decision in Alstate Maintenance and broadly interpret what constitutes protected concerted activity as set forth in Starfish Family Services, Inc., Case 07-CA-278787, Significant Advice Memorandum dated Dec. 6, 2021. Second ​     ​, we conclude that the Charging Party's workplace conduct over gender ​     ​ discrimination constituted inherently concerted activity. Third, we conclude that the Employer violated Section 8(a)(1) when it terminated the Charging Party because of ​     ​ protected concerted activity regarding how the Employer compensated employees and gender ​     ​ discrimination. Fourth, we conclude that the Employer unlawfully promulgated an email policy in response to the Charging Party's protected concerted activity of including ​     ​ pronouns in email signature. The Region should also use this case as a vehicle to overrule Rio All-Suites as set forth in Northstar Insurance Advisors, LLC, Case 14-CA-285828, Significant Advice Memorandum dated July 19, 2022. Finally, we conclude that the Employer violated Section 8(a)(1) when it threatened the Charging Party with termination for raising a group complaint regarding wages with the Employer.

1. The Charging Party Engaged in Conduct that Constituted Protected Concerted Activity Under Current Board Law, but in so Finding Those Violations the Board Should Overrule Alstate Maintenance, Which Inappropriately Limited the Concept of Protected Concerted Activity

For employees to be under the Act's protection for protected concerted activities, two elements must be satisfied: “the activity they engage in must be ‘concerted,’ and the concerted activity must be engaged in ‘for the purpose of … mutual aid or protection.”’ [8] Regarding concerted activity, although protection for joint employee action “lies at the heart of the Act,” individual employee action is concerted if it is sufficiently linked to group action. [9] An employee's individual action is concerted if it involves bringing “truly group complaints” to management, which can be established when “there is evidence of ‘group activities’ e.g., prior or contemporaneous discussion of the concern between or among members of the workforce” or evidence that the activity had “the object of initiating or inducing or preparing for group action or … had some relation to group action.” [10] Thus, individual conduct has been found concerted both in the form of preliminary discussions [11] and where such conduct is the logical outgrowth of earlier collective discussions. [12] It is also well established that an employee may act partly from selfish motivations and still be engaged in concerted activity, even if they are the only immediate beneficiary of the solicitation. [13]

Applying these principles compels finding that the Charging Party engaged in concerted activity under current Board law regarding both ​     ​ concerns with gender ​     ​ discrimination at work and the Employer's compensation policies. Regarding the former, the Charging Party repeatedly raised with supportive coworkers ​     ​ concerns about being ​     ​ at work by other employees and members of management. For instance, after sending the staff-wide email on ​     ​ announcing ​     ​, the Charging Party informed management of ​     ​ concern with other employees and members of management ​     ​ The Charging Party discussed those incidents on a Facebook groupchat with some coworkers who responded with expressions of support and shared outrage over ​     ​ mistreatment at work. Thus, the Charging Party's subsequent conduct of adding pronouns to ​     ​ email signature to prevent others at work from ​     ​ represented a logical outgrowth of ​     ​ discussions with coworkers about the issue. Similarly, after a supervisor informed the Charging Party that ​     ​ had sent ​     ​ to say that having ​     ​ pronouns in ​     ​ email signature violated Employer policy, the Charging Party asked ​     ​ coworkers on the Facebook groupchat to take bets on whether the Employer would terminate ​     ​ for not removing the pronouns. ​     ​ coworkers responded with support for the Charging Party not removing pronouns, and one coworker encouraged ​     ​ to fight the Employer with full force if ​     ​ was discharged. In light of the foregoing, the Charging Party's conduct of repeatedly refusing to remove the ​     ​ pronouns from ​     ​ email signature because, as ​     ​ reiterated to ​     ​ during the ​     ​ discharge meeting being ​     ​ at work dehumanized, ​     ​ constitute a logical outgrowth of ​     ​ prior discussions with coworkers.

Regarding the Employer's compensation policies, the Charging Party's conduct involved bringing a truly group complaint to the attention of management While discussing wages with ​     ​ coworkers shortly after being hired in ​     ​ the Charging Party learned that the Employer paid newly hired employee more than longer term employees, and that several or ​     ​ coworkers did not know if the Employer had been paying them for working after 5:30 PM. Because of those initial discussions, the Charging Party approached one of ​     ​ on ​     ​ to ask if the Employer had been paying employees for working after 5:30 PM. ​     ​ responded by, among other things, asking if the Charging Party had been discussing the issue with ​     ​ coworkers, and the Charging Party said ​     ​ had been doing so. After the Employer called an employee meeting the next day to explain its compensation policy for working after 5:30 PM, the Charging Party and ​     ​ coworkers created a system for recording the amount of work they performed after 5:30 PM. In further pursuit of this group concern, the Charging Party in ​     ​ requested ​     ​ paystubs from the Employer. In short, the foregoing firmly establishes that when the Charging Party confronted the Employer about how it compensated employees for working after 5:30 PM, ​     ​ was engaged in concerted activity by bringing to management's attention a complaint that ​     ​ and ​     ​ coworkers had repeatedly discussed.

Moreover, the Charging Party's actions here—both in refusing to remove the ​     ​ pronouns from ​     ​ email signature and questioning the Employer about whether it compensated employees for working after 5:30 PM—were for the mutual aid and protection of other employees. In general, individual employee conduct is for mutual aid or protection if the employee seeks “to improve terms and conditions of employment” or otherwise improve the lot of employees. [14] Here, although the Charging Party may have raised the issue of workplace gender discrimination for ​     ​ own immediate benefit, by doing so ​     ​ also would improve the employment terms of ​     ​ coworkers, inasmuch as preventing workplace discrimination inures to the benefit of all employees. ​     ​ employees are significantly more likely to experience workplace discrimination and harassment based on their gender ​     ​ than ​     ​ employees. [15] The EEOC has found that intentionally ​     ​ a ​     ​ employee may constitute sex-based harassment in violation of Title VII. [16] Moreover, ​     ​ employees are more likely to engage in “covering” behaviors to avoid such harassment or discrimination, meaning that some employees may choose to purposely hide their ​     ​ in the workplace. [17] This could have been the case with any of the Charging Party's coworkers who may have benefited from ​     ​ decision to speak up against Employer discrimination towards ​     ​ and to leave ​     ​ pronouns in ​     ​ email signature so as to not continuously be ​     ​ and dehumanized by other employees and members of management. ​     ​ action also could have benefitted workers outside of the Charging Party's worksite, such as the nurse who worked for one of the Employer's clients and added ​     ​ pronouns to ​     ​ email signature shortly after the Charging Party did so.

Even without acknowledging this possible benefit to the Charging Party's coworkers, the Charging Party acted for the mutual aid and protection of ​     ​ coworkers when ​     ​ refused to remove ​     ​ pronouns from ​     ​ email signature and addressed the Employer's discriminatory email policy. The Board has held that the concept of “mutual aid or protection” must focus on the goal of concerted activity and whether there is a link between the activity and matters concerning the workplace or employees' interests as employees. [18] Here, the Charging Party's protest of the Employer's discriminatory email policy linked to the greater workplace concern of workplace discrimination not only for ​     ​ employees but for ​     ​ all protected groups under Title VII. Thus, the Charging Party's decision to keep ​     ​ pronouns in ​     ​ email signature despite the Employer's demands to remove them was done for mutual aid and protection. Similarly, by repeatedly raising with the Employer the concern that employees shared over the Employer's policy for compensating work after 5:30 PM, the Charging Party sought to improve ​     ​ own employment terms as well as those of ​     ​ coworkers.

Although the preceding analysis establishes that the Charging Party engaged in protected concerted activity under current Board precedent, specifically Alstate Maintenance, [19] the Region should also rely on the analytical framework set forth in Starfish Family Services, Case 07-CA-278787, Significant Advice Memorandum dated Dec. 6, 2021, to urge the Board to overrule Alstate and find that the Charging Party engaged in protected concerted activity.

2. The Charging Party's Discussions and Actions Regarding Gender ​     ​ Discrimination Should be Deemed Inherently Concerted Activity Because Such Discrimination Necessarily Implicates Significant Terms and Conditions of Employment

The “inherently concerted” doctrine emerged in Trayco of South Carolina, Inc., [20] where the Board held that an employee's discussions with her coworkers about higher wages constituted concerted activity even though the discussions did not contemplate group action. In reaching that decision, the Board observed that the object of inducing group action need not be expressed but can instead be implied from the subject matter of discussion. Because higher wages are a “frequent objective of organizational activity,” the Board reasoned that the employee's discussions about that subject impliedly were concerted. The doctrine was enlarged in Aroostook County Regional Ophthalmology Center, [21] where the Board decided that discussions about changes in work schedules were inherently concerted activity despite the absence of any talk about the initiation of group action. Like wages, the Board concluded that work schedules are a “vital term and condition of employment” that is “likely to spawn collective action.” [22] Lastly, in Hoodview Vending Co., [23] the Board added the subject of “job security” to the list of vital terms and conditions of employment that, when discussed between two or more employees, will be regarded as inherently concerted activity. Such discussions concern “the very existence of the employment relationship and [will] quickly ripple through, and resonate with, the work force.” [24] ​     ​

As with racial discrimination or harassment, employee discussions and actions regarding gender and gender ​     ​ discrimination at work should be considered inherently concerted activity by the Board. Any discussions concerning an employer's alleged discrimination toward its employees raise the same considerations identified by the Board with respect to discussions over other “vital” terms and conditions as a rationale for finding them inherently concerted. Like systemic racism, discrimination against an employee because of their gender ​     ​ affects all terms and conditions of employment. [25]

Indeed, the Supreme Court has recognized as much by affirming that Title VII protections under the term “gender” include protections for employees who identify as transgender. [26] In addition, the Board has held that activity related to a matter of common concern such as gender discrimination will be deemed concerted in nature as a matter of fact. [27] Since gender ​     ​ discrimination and harassment are derived from discriminating against someone for their ​     ​ gender, employee discussions or other activities in response to their employer's gender ​     ​ discrimination and/or tolerance thereof should be deemed inherently concerted as well.

3. The Employer Unlawfully Terminated the Charging Party for Engaging in Protected Concerted Activities Regarding Wages and Gender ​     ​ Discrimination

In addition, the evidence strongly supports finding that the Employer terminated the Charging Party due to ​     ​ protected concerted activity. Under Wright Line, the General Counsel satisfies her initial burden of proving that an employee's Section 7 activity was a motivating factor for an adverse employment action by showing the employee engaged in union or protected concerted activity, the employer had knowledge of that activity, and the employer demonstrated animus or hostility toward that activity. [28] The evidence of animus must be sufficient to support the conclusion that a causal relationship exists between the employees' protected activity and the adverse employment action. [29] An employer's improper motivation may be inferred from several factors, including statements indicating the employer's anti-Section 7 motive, [30] assertions that the employee's protected concerted activities constituted misconduct, [31] or the presence of contemporaneous unfair labor practices. [32] “If the General Counsel makes the required initial showing, the burden shifts to the employer to prove by a preponderance of the evidence that it would have taken the same action even in the absence of the union or protected concerted activity.” [33] However, an employee's refusal to comply with an unlawful rule or order prohibiting activity protected by Section 7 does not constitute insubordination justifying an adverse employment action. [34]

Applying these principles results in finding that the Employer violated Section 8(a)(1) by terminating the Charging Party. As concluded above, the Charging Party engaged in protected concerted activity by discussing with coworkers concerns with wages and being ​     ​ at work by other employees and members of management. The Employer had direct knowledge of the Charging Party's protected concerted discussions about wages because ​     ​ directly asked the Charging Party if ​     ​ and ​     ​ coworkers had been discussing the Employer's after-5:30 PM pay policy, and the Charging Party said they had been. Indeed, the Employer held an employee meeting the next day to discuss that wage issue. In ​     ​, after an employee accidentally sent a request for a wage increase to the entire staff, ​     ​ replied to all employees that ​     ​ knew they had been discussing wages and that they could be discharged for doing so.

The Employer also knew or should have known about the Charging Party's protected concerted activity about being ​     ​ at work. The Employer's entire management team met with the Charging Party to devise a plan on how ​     ​ should inform the entire staff of ​     ​, indicating the Employer knew this announcement would be a topic of discussion among its employees. The Charging Party then informed the Employer of several incidents where other employees or members of management had ​     ​ At the same time, the Charging Party began discussing ​     ​ concerns about being ​     ​ at work with supportive coworkers on a Facebook groupchat. ​     ​ then added ​     ​ pronouns to ​     ​ email signature to help prevent that discriminatory conduct from happening, which resulted in the Employer promulgating an email policy that prohibited the use of ​     ​ pronouns in the signature line. The foregoing establishes that the Employer knew the Charging Party's addition of ​     ​ pronouns to ​     ​ email signature line related to ​     ​ expressed concerns to the Employer and other employees about gender ​     ​ discrimination at work.

Finally, the evidence here strongly supports finding that the Employer acted based on animus toward the Charging Party's Section 7 activity regarding wages and gender ​     ​ discrimination. During the discharge meeting on ​     ​ expressed their frustration with the Charging Party constantly challenging them, which was an implicit reference to ​     ​ prior protected concerted complaints about the Employer not paying employees for working after 5:30 PM and permitting gender ​     ​ discrimination. [35] Moreover, the Employer explicitly discharged the Charging Party for engaging in the protected concerted act of refusing to remove the ​     ​ pronouns from ​     ​ email signature. [36] The Employer's anti-Section 7 motive toward the Charging Party is further established by its contemporaneous unfair labor practices, including maintaining a work rule that expressly prohibited employees from discussing their wages with each other, threatening the Charging Party on ​     ​ with termination after​     ​ raised the group complaint over whether the Employer compensated employees for working after 5:30 PM, sending an email to the entire staff on ​     ​ stating that employees could be terminated for discussing their wages, and promulgating an email policy prohibiting the use of ​     ​ pronouns in email signatures in direct response to the Charging Party's Section 7 activity. [37] In short, the Employer repeatedly demonstrated it would not tolerate Section 7 activity by the Charging Party or any of its employees. The Employer also cannot satisfy its rebuttal burden here. Although the Employer asserts it terminated the Charging Party for in subordinately violating its email policy by refusing to remove the ​     ​ pronouns from ​     ​ email signature, an employee's refusal to comply with an unlawful rule prohibiting activity protected by Section 7 does not constitute insubordination justifying discharge. [38]

4. The Employer Promulgated an Unlawful Email Policy in Response to the Charging Party's Section 7 Activity, and this Case Presents a Good Vehicle for Urging the Board to Reconsider Rio All-Suites

An employer violates Section 8(a)(1) by promulgating a work rule in response to its employees' Section 7 activity. [39] For example, in Heritage Lakeside, a nursing home violated Section 8(a)(1) by promulgating six days after the filing of the representation petition a “resident-centered” conversation policy that prohibited employees from discussing non-resident related matters at work. [40] As in that case, the Employer here promulgated its email rule that prohibited employees from including ​     ​ pronouns in their email signatures about a month after the Charging Party began engaging in that activity to prevent coworkers from ​     ​ at work. As discussed above, this new activity by the Charging Party was protected by Section 7. Thus, the Employer violated Section 8(a)(1) by promulgating a rule to restrict it.

In the event that the Employer asserts that such an allegation is time barred by Section 10(b), the Region should be prepared to reject that defense. An untimely allegation is not barred by Section 10(b) if it involves conduct that occurred within six months of a timely filed charge and is “closely related” to an allegation in that charge. [41] Here, both conditions are met. First, the Employer promulgated the unlawful rule in mid-October, which was within six months of the current charge filed on December 29. Second, the untimely allegation concerning the rule is “closely related” to the discharge allegation in the timely filed charge. [42] Both allegations involve violations of Section 8(a)(1), and while the timely charge addresses the Charging Party's termination, the new allegation addresses the policy the Employer relied on to terminate the Charging Party. Thus, the same factual situation is involved, and the Employer would raise a common defense to both allegations, specifically, that the Charging Party's conduct of keeping ​     ​ pronouns in ​     ​ email signature did not constitute protected concerted activity. [43] In short, this new allegation is not barred by Section 10(b) and should be amended into the timely filed charge.

In addition, ​     ​ the Region should use this case as a vehicle to urge the Board to overturn Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, in which the Board overturned Purple Communications and held that an employer's property rights allow it to restrict the nonbusiness use of its IT resources “absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other, or proof of discrimination.” [44] The Region should rely on the legal analysis set forth in Northstar Insurance Advisors, LLC, Case 14-CA-285828, Significant Advice Memorandum dated July 19, 2022, to request that the Board adopt a standard under which employees have the right to use employer email and other electronic communications systems for nonbusiness purposes, absent a showing by the employer of special circumstances that justify specific restrictions.

5. The Employer Unlawfully Threatened the Charging Party with Termination for Raising a Complaint Regarding Wages

Section 8(a)(1) of the Act makes it unlawful for employers to threaten employees with job loss for discussing wages among themselves. [45] Here, as set forth above, the Charging Party engaged in the protected concerted activity of discussing issues with wages with ​     ​ coworkers and then bringing a group complaint to the Employer's attention. In response to the Charging Party's actions, ​     ​ implicitly threatened the Charging Party on ​     ​ with job loss by telling ​     ​ to find a new if ​     ​ was going to accuse ​     ​ of wage theft. [46] ​     ​ also asked the Charging Party during this encounter whether other employees were discussing wages, establishing that ​     ​ threat was motivated, at least in part, by attempting to stop the Charging Party and other employees from exercising their protected right to discuss wages among each other and to bring workplace issues to management's attention. [47]

CONCLUSION

Based on the foregoing analysis, the Region should issue complaint, absent settlement, alleging the Section 8(a)(1) violations set out above.

/s/

R.A.B.

ADV.09-CA-288304.Response.CrosbysDrugs. ​     ​