NLRB Advice Memoranda, Direct Fairways, LLC, National Labor Relations Board, (Apr 17, 2023)

The Region submitted this case for advice as to (1) whether the Charging Party's email refusal to return to work due to COVID-19 symptoms constituted protected concerted activity, even absent evidence of group activity; (2) whether their supervisor's statement “maybe this isn't the right job for you” made in response to employee's refusal was a threat that violated Section 8(a)(1) of the Act; and (3) whether the discharge of the Charging Party violated Section 8(a)(1) of the Act. We conclude that under current Board law, there is no basis to find a violation; consequently, the charge should be dismissed absent withdrawal.

Charging Party worked for the Employer as a telemarketer at its Tempe, Arizona facility. ____________________ job duties included making cold calls to businesses to sell advertising space on printed materials. Responsible for making 300-350 calls a day and closing two sales per week, ____________________ worked on a sales floor with roughly 40 other employees. Whenever ____________________ or one of ____________________ co-workers consummated a sale, management, ____________________ would ring a loud bell on the sales floor as a form of celebration.

Sometime prior to April 2022, Charging Party states that ____________________ ate lunch on a semi-regular basis with three of ____________________ co-workers at a “lunch bench” located under a tree outside of the building. During these lunches, Charging Party asserts that each of them would complain about the bell and about ____________________ favoritism. [1] In April, a co-worker informed Charging Party of a position available off the sales floor in another department, prompting ____________________ to pursue a transfer to this position with the human resources department. A human resources official told.____________________ needed to discuss it with ____________________ approached ____________________ about the transfer, ____________________ said ____________________ wanted to know ____________________ reasons.____________________ replied ____________________ was frustrated with the bell.____________________ testified that ____________________ believed employees looking to transfer departments have already “checked out,” though ____________________ told Charging Party that ____________________ and ____________________ still wanted to work with ____________________ and the two agreed ____________________ would stay on the sales floor. There is no evidence ____________________ was responsive to Charging Party's concern with the bell.

After leaving early Friday, ____________________ due to a gastrointestinal issue, Charging Party states that ____________________ woke up the ensuing Monday, ____________________ with a bad chest cold, went to see a physician and was given a COVID test along with a doctor's note indicating ____________________ would be able to return to work ____________________ provided the test was negative. Two days later, on ____________________, ____________________ emailed ____________________ that ____________________ fever was down but ____________________ still had not gotten the results of ____________________ COVID test and indicated ____________________ was disinclined to return to work. In email communication, ____________________ questioned this decision believing that, since it had ____________________ been five days since the onset of ____________________ original symptoms on the ____________________, ____________________ could return. In an email sent at 11:02 on the morning of the ____________________, ____________________ disputed that the 99 degree temperature Charging Party claimed ____________________ had was actually a fever, and stated:

“The way you left on Friday and how this week is panning out is not sitting well with me. Especially after you trying to get into another department. Maybe this isn't the right job for you.”

Later that day Charging Party states ____________________ received a positive COVID test (which ____________________ sent to ____________________ the next day). Thus, at 6:38 PM on the ____________________, ____________________ emailed ____________________ about the positive test and stated as follows:

If I had listened to you and came to work like you demanded, everyone would have COVID Monday. I followed my doctor's orders thankfully and hopefully it saves my life. Please stop threatening me about my job. I'm not sure when I'll be released or die but I'm sure you will be notified either way.

Later that evening, Charging Party sent ____________________ photos of ____________________ discharge paperwork from the hospital ____________________ visited earlier, which identifies COVID-19 virus infection as the discharge diagnosis. ____________________ also sent a second doctor's note excusing Charging Party's absences until ____________________ [2]

We conclude that Charging Party did not engage in protected concerted activity under extant law. Concerted activity includes not only conduct “engaged in with or on the authority of other employees,” [3] but also conduct by individual employees, including: (1) seeking to initiate, induce, or prepare for group action; [4] (2) bringing truly group complaints to the attention of management; [5] (3) engaging in conversations that have “some relation to group action in the interest of” employees; [6] and (4) conduct that is the logical outgrowth of earlier concerted activity. [7] The evidence fails to demonstrate that any of the Charging Party's conduct was concerted under any of the above standards.

First, even if Charging Party's shared complaints with coworkers about the bell on the sales floor and purported favoritism shown by ____________________ were concerted, there is no evidence the Employer was aware of them nor of their concerted nature; all the Employer knew is that Charging Party, alone, wanted to transfer off of the sales floor to a different position because ____________________ was frustrated with the bell. The evidence indicates the Employer was unaware that other employees were frustrated with the bell, or that Charging Party had discussed the issue with co-workers in a concerted way. Second, Charging Party's attempts to secure the transfer represent nothing more than mere griping because there was no indication of any intent “to cultivate it into a more confrontational form of expression.” [8] When the Charging Party did complain to ____________________ supervisor, it was not to express a shared concern but only ____________________ own personal frustration. The sole demand ____________________ made was to be transferred to a different department, which was denied. There is no evidence that the Charging Party and ____________________ coworkers took any further action.

Third, we conclude that Charging Party's refusal to return to work on ____________________ was not PCA. ____________________ never discussed the Employer's COVID protocols with employees, before or after. [9] The refusal did not anticipate any future group action, nor was it accompanied by any demands. For these same reasons, the refusal to return to work falls short of a work stoppage. The Charging Party was simply ill and did not wish to report to work.

As for the allegation that the Employer violates Section 8(a)(1) by stating in an email to Charging Party, “[m]aybe this isn't the right job for you,” while it is true that the coerciveness of such a remark would be measured based on an objective standard, we conclude that here, in the absence of protected concerted activity, the statement was lawful. Notably, even if the Charging Party's email advising the Employer that ____________________ was COVID positive and stating, “If I had listened to you and came to work like you demanded, everyone would have Covid Monday,” could be found to rise to the level of PCA (which it doesn't), there is a temporal flaw in finding the alleged Section 8(a)(1) remark “maybe this isn't the right job for you” to be an unlawful response to that email. The Employer's email containing the remark was sent hours before Charging Party's email warning that had ____________________ listened to____________________ everyone would have contracted COVID. Clearly, then, the Employer's email could not have been a response to Charging Party's email.

In view of the foregoing, the charge should be dismissed in its entirety. This email closes the case in Advice. Please let us know if you have any questions.

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