NLRB Advice Memoranda, East Coast Abatement Co., National Labor Relations Board, (Nov 5, 2020)

The Region submitted this case for advice on whether the Employer violated Section 8(a) (1) by allegedly interrogating and threatening the Charging Party with discharge in response to conduct previously determined not to be protected concerted activity. The Region should dismiss the allegations, absent withdrawal.

Initially, because the Charging Party had not engaged in protected concerted activity, the Employer did not unlawfully interrogate ​     ​ about engaging in Section 7 activities when its vice-president asked why ​     ​ had discussed a senior coworker's wages with another employee. As set forth in the previous Advice Closing Email for this case (dated Sept. 16, 2020), the Charging Party's discussion of the senior coworker's wages was not for the purpose of mutual aid or protection because ​     ​ never sought to improve employment terms. Moreover, the evidence showed that the Employer took action to appease the senior coworker, on whom it relied heavily and who had become upset about ​     ​ private wage information being made public, rather than to retaliate against potential past or future Section 7 activity by the Charging Party. In this context, the vice-president's question was not an attempt to discern the extent of the Charging Party's Section 7 activities and, thus, did not have a reasonable tendency to interfere with the exercise of those rights.

For similar reasons, we conclude that the Employer did not unlawfully threaten the Charging Party with discharge when the Employer's vice-president told ​     ​ that discussing another employee's wages was grounds for discharge and that this rule was in the Employer's handbook. Again, the Charging Party did not seek to improve employment terms by discussing ​     ​ senior coworker's wages with another employee, and the Employer's response was based on appeasing the senior coworker's concern about the disclosure of ​     ​ wage information. Based on the surrounding circumstances, the vice-president's statement did not have the reasonable tendency to restrain the Charging Party from exercising ​     ​ Section 7 rights. (This analysis does not alter the conclusion in the Advice Closing Email dated July 31, 2020, that the Employer violated Section 8(a)(1) by maintaining an overbroad Non-Disclosure Rule in its employee handbook.)

This email closes this case in Advice. Please contact us if you have any questions.

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Supervisory Attorney

Division of Advice

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