NLRB Advice Memoranda, East Coast Abatement Co., National Labor Relations Board, (Sep 16, 2020)

Pursuant to instruction from Advice, the Region submitted this case on the issue of whether the Employer terminated the Charging Party for protected concerted activity in violation of Section 8(a)(1). We conclude that the Charging Party did not engage in protected concerted activity primarily because ​     ​ conduct did not seek to improve working conditions and thus was not for the purpose of mutual aid or protection. Thus, the Region should dismiss the allegation, absent withdrawal.

The Employer operates an abatement and demolition business in northeast North Carolina. In addition to managers and supervisors, the Employer has about 18 to 20 employees, 16 of whom work in the field performing abatement and demolition work.

In September 2018, while on location at a jobsite, the Charging Party inadvertently found an open envelope that had been left in one of the Employer's trucks. The envelope contained the paystub of the Employer's most-senior field employee, who the Employer relies on heavily both as a lead person in the field with knowledge of all the technical aspects of the work and to train new employees. The Employer asserts that the senior employee is its highest-grossing employee who helped it become one of the most respected demolition firms in the region. [1] As the Charging Party looked at the senior employee's paystub, another coworker at the jobsite approached the truck for a bottle of water. The Charging Party showed ​     ​ the senior employee's paystub and said the Employer treated the senior employee well, but that ​     ​ was worth every penny. The two joked that it was “big money” because the senior employee's pay was more than either of theirs, but neither of them questioned it or became upset. The Charging Party then discarded the paystub.

The Charging Party did not subsequently discuss the senior employee's pay. It appears that several months later, around June 2019, the coworker to whom ​     ​ showed the paystub informed an Employer manager of what had occurred, and the manager informed the senior employee. The Employer asserts that the senior employee then filed a formal complaint with it against the Charging Party for violating ​     ​ privacy by showing and discussing ​     ​ paystub with another employee.

In early ​     ​ 2019, the Employer's vice-president called the Charging Party and asked ​     ​ why ​     ​ was talking about the senior employee's pay with the other coworker. The Charging Party explained what happened, including that ​     ​ accidentally had found the paystub. The vice-president replied that discussing another employee's pay was reason for termination and that it was in the employee handbook but said ​     ​ would consider the matter further. The next day, the vice-president called the Charging Party and terminated ​     ​ employment. The termination notice states that the Employer terminated the Charging Party because the senior employee complained that the Charging Party had violated ​     ​ privacy by showing a coworker ​     ​ paystub, which contains confidential information including social security number, home address, and wage rate. The notice states that the Charging Party's conduct violated the employee handbook, indirectly referencing the Employer's Non-Disclosure Policy. [2]

The Employer subsequently opposed the Charging Party's application for state unemployment compensation benefits, relying on the same reasons set forth in the termination notice for why it had discharged ​     ​ for work-related misconduct. In December 2019, after the state initially ruled in favor of the Charging Party, the Employer filed an appeal. In that appeal, the Employer reasserted that the Charging Party had engaged in misconduct as evidenced by, among other things, the senior employee filing a complaint against ​     ​ for violating ​     ​ privacy. The Employer stated that the Charging Party showed no regard for the senior employee's position with the company and that the latter was “not willing to work with or around [the Charging Party] and that ​     ​ no longer had any trust in ​     ​ nor did ​     ​ believe ​     ​ to be a person of any true integrity.”

In January 2020, in its position statement to the Region in response to the current charge, the Employer's general manager stated that the Employer discharged the Charging Party for violating the senior employee's right to privacy by disclosing ​     ​ wages and personal information and for violating the Non-Disclosure Policy in the handbook. The Employer stressed the importance of the senior employee to its business. The Employer filed a supplemental position statement asserting that the Charging Party had not engaged in protected concerted activity, and that the Employer did not believe ​     ​ had, because ​     ​ never sought to initiate any action to improve ​     ​ pay or that of ​     ​ coworkers, citing to Alstate Maintenance, LLC, 367 NLRB No. 68, slip op. at 2 (Jan. 11, 2019). The Employer specifically relies on the Charging Party's testimony from the unemployment compensation hearing that the senior employee “deserved to be paid that well” and that neither ​     ​ nor the coworker to whom ​     ​ showed the paystub suggested taking any action regarding their own pay.

We conclude that the Charging Party did not engage in protected concerted activity primarily because ​     ​ conduct did not seek to improve working conditions and thus was not for the purpose of mutual aid or protection.

For an employer's adverse personnel action to be unlawful under the Act, it must be motivated by employee activity that is both “concerted” and “for the purpose of … mutual aid or protection.” See, e.g., Alstate Maintenance, LLC, 367 NLRB No. 68, slip op. at 2. An employee's individual action is concerted if “engaged in with the object of initiating or inducing or preparing for group action or … had some relation to group action.” Id., slip op. at 3 (citation omitted). It is for the purpose of mutual aid or protection if the employee seeks “to improve terms and conditions of employment” or otherwise improve the lot of employees. Id., slip op. at 8-9.

Here, we initially conclude that the Charging Party never engaged in concerted activity as the Board recently clarified that principle in Alstate Maintenance. Id., slip op. at 7. ​     ​ admittedly did not seek to initiate, induce, or prepare for any group action regarding wages when ​     ​ showed ​     ​ coworker the paystub ​     ​ had just found. To the contrary, ​     ​ stated to ​     ​ coworker that the senior employee is worth every penny and neither of them questioned or became upset about the senior employee's higher wage rate. The Charging Party testified at the state unemployment compensation hearing that neither ​     ​ nor ​     ​ coworker suggested taking any action about their pay. Nor did the Charging Party subsequently discuss the senior employee's pay with other coworkers at all, let alone to generate the support for remedying perceived wage disparities. In short, the Charging Party's conduct after finding the paystub did not involve concerted activity at its inchoate stage.

In some cases, an employee's discussion of wages is currently considered “inherently concerted” based on the rationale that it involves such a vital employment term it is likely to spawn collective employee action even in the absence of that goal. [3] See, e.g., Alternative Energy Applications, 361 NLRB 1203, 1206 n.4 (2014). We would not find a violation here based on this principle because when the Board has applied it in discharge cases the required purpose of mutual aid or protection was evident due to the discriminatee or another employee in the conversation referring to a known complaint about an employment term. See, e.g., id. at 1204, 1206 (applying inherently concerted principle where the discriminatee frequently had complained about low wages and one coworker had informed the employer's president about his complaints); Trayco of S.C., 297 NLRB 630, 634-35 (1990) (applying principle where the discriminatee frequently complained to coworkers and management that newer employees earned more than more senior employees like herself), enf. denied mem., 927 F.2d 594 (4th Cir. 1991); Scientific-Atlanta, 278 NLRB 622, 624-25 (1986) (applying principle to find employer unlawfully demoted group leader because although she did not intend further group action by informing a coworker of who had received promotions, the latter initiated the conversation amid recent employee complaints of unmerited promotions and their accompanying wage increases). That context is not present here. Neither the Charging Party nor ​     ​ coworker complained about not earning as much as the senior employee, and again, the Charging Party stated the senior employee deserved ​     ​ higher wage rate. In other words, they never had a goal of improving their employment terms. The Charging Party also did not subsequently discuss or complain about the senior employee's higher pay. Thus, the current case differs from those where the Board has applied the inherently concerted principle to find an unlawful discharge. Cf. Alternative Energy Applications, 361 NLRB at 1204-06 (finding employer unlawfully discharged employee who complained about low wages for discussing his own wages with coworkers where employer had direct knowledge of that activity); Trayco of S.C., 297 NLRB at 635 (finding employer unlawfully discharged employee where it had direct knowledge that she had complained to coworkers and management that newer employees were paid more than more senior employees like herself).

For similar reasons, we conclude that the Employer did not unlawfully discharge the Charging Party under the test set forth in Continental Group, 357 NLRB 409, 412 (2011). [4] Under that test, an employer violates Section 8(a)(1) by discharging or disciplining an employee for violating an unlawfully overbroad work rule by engaging in either protected concerted activity or activity that is not concerted but “touches the concerns animating Section 7.” Id. Although the Board did not precisely define the activity falling into the second category, it has noted that to be included the activity should be for the purpose of mutual aid or protection. See Butler Medical Transport, LLC, 365 NLRB No. 112, slip op. at 6 & n.22 (July 27, 2017). An employer does not violate Section 8(a)(1) by discharging or disciplining an employee for conduct “wholly distinct” from the concerns underlying Section 7, even if the discharge or discipline is imposed pursuant to an unlawfully overbroad rule. See Continental Group, 357 NLRB at 412.

Here, although the Employer stated that it discharged the Charging Party for breaching its overbroad Non-Disclosure Policy when ​     ​ showed a coworker the senior employee's paystub, neither category of the Continental Group test can be satisfied. The Charging Party does not fall within the first category because, as discussed above, the action for which the Employer discharged ​     ​ did not constitute concerted activity under Alstate Maintenance. ​     ​ also does fall within the second category because, as also discussed above, ​     ​ conduct did not involve mutual aid or protection where ​     ​ never sought to improve any working conditions. Thus, ​     ​ activity did not “touch the concerns animating Section 7.” Cf. Butler Medical Transport, LLC, 365 NLRB No. 112, slip op, at 6 & n.22 (noting that in Continental Group an example of conduct falling within the second category involved an employee not engaged in concerted activity who breached an overbroad rule by “conduct that seeks higher wages”). Rather, because it was “wholly distinct” from the concerns underlying Section 7, the Employer did not violate Section 8(a)(1) by discharging ​     ​ pursuant to an unlawfully overbroad rule. See Continental Group, 357 NLRB at 413 (finding discharge pursuant to overbroad no-access rule did not violate Section 8(a)(1) where employee's conduct of sleeping and living out of car parked on premises was wholly distinct from Section 7 activity).

Finally, we considered whether the Employer unlawfully discharged the Charging Party because it either mistakenly believed ​     ​ had engaged in protected concerted activity, see, e.g., Monarch Water Systems, 271 NLRB 558, 558 & n.3 (1984), or believed ​     ​ would engage in that activity in the future, see, e.g., Parexel International, LLC, 356 NLRB 516, 519-20 (2011). We find no merit to either theory because the evidence shows that the Employer did not retaliate against possible past or future protected concerted ​     ​ activity by the Charging Party for the purpose of obtaining higher wages for ​     ​ or coworkers. Rather, the evidence shows the Employer acted to appease the senior employee who had become upset about ​     ​ private wage information being made public. The Employer attributes the success of its business in part to the senior employee, whom it asserts is its highest-grossing employee and on whom it relies heavily for ​     ​ technical expertise in the field and to train new employees. The Employer noted that it discharged the Charging Party based on the complaint the senior employee filed with it, how highly valued the senior employee is to its operation, and that ​     ​ no longer wanted to work with or around the Charging Party. In short, the totality of the circumstances here, including the Charging Party acknowledging that ​     ​ conduct was not for the purpose of complaining about ​     ​ wage rate, preclude finding that the Employer acted based on an anti-Section 7 motive.

Based on the preceding, the Region should dismiss the allegation absent withdrawal. This email closes this case in Advice. Please contact us if you have any questions.

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Division of Advice

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