NLRB Advice Memoranda, Gallup, Inc., National Labor Relations Board, (Jul 24, 2019)

This case was submitted for advice as to whether the Charging Party was discharged for protected concerted activity when the Employer terminated ​     ​ for “talking about ​     ​ pay to others” where ​     ​ had been unsuccessful in enlisting any other employees in ​     ​ pay complaints. We conclude that, notwithstanding ​     ​ lack of success, the Charging Party's ongoing complaints to ​     ​ fellow employees about their pay were protected concerted activity and thus ​     ​ discharge for that conduct violated Section 8(a)(1) of the Act. We also conclude that the Employer violated Section 8(a)(1) with regard to some of the statements its managers made to the Charging Party.

FACTS

In ​     ​, the Charging Party was hired by Gallup, Inc. (“Employer”), a management consulting company, at its primary office in Omaha, Nebraska. The Charging Party was hired as a quality assurance coordinator (“QA”) in the Employer's software development division and was classified as an “exempt” employee not entitled to overtime compensation under the Fair Labor Standards Act. In December 2017, the Employer reclassified its QA employees as “non-exempt” and thus entitled to overtime pay. At the same time, the Employer reduced these employees' base salary by $7,000. The Employer informed these employees that if they worked the same hours they had been working before (which it stated was usually over forty hours), they would make up the loss in overtime pay and earn the same amount they had earned as exempt employees.

The Charging Party was deeply unhappy with this change, since as a ​     ​ was limited in how much overtime ​     ​ could work and the lower base salary was not enough, in ​     ​ view, to make ends meet. ​     ​ raised the issue with ​     ​ who assured ​     ​ that ​     ​ would make the same salary as before by the end of the year. ​     ​ also raised the issue with ​     ​ fellow QAs. On ​     ​ team were about forty-five software developers (who were all exempt) and ​     ​ non-exempt QAs, including the Charging Party. The other QA's told ​     ​ the new payment system could be an improvement over the previous system, but at least one other QA shared the Charging Party's frustration, complaining of the stress of having to personally keep track of overtime each pay period to know if there would be enough money to pay the bills. Because of ​     ​complaints, the Charging Party's ​     ​ raised ​     ​ base pay by $2,000. The Charging Party's coworkers told ​     ​ to get any end-of-year assurances in writing, and so ​     ​ wrote “By end of 2018, [Charging Party] should make a total 23 of $59,000 (base + overtime).”

By June 2018, the Charging Party resumed raising the pay issue with managers and other QAs, including with at least one QA from another team, who agreed that the change in pay was a problem and told the Charging Party that another QA on that team had recently quit due to the pay problem. The Charging Party also raised the pay issue with “exempt” employees on ​     ​ team to point out how unfair it was, and complained that the Employer was saying that employees only had to work forty hours but was clearly expecting them to work more. At least one such employee noted ​     ​ had voiced to management a similar complaint about hours-worked expectations.

The Charging Party continued ​     ​ campaign about the pay issue through November 2018, raising the issue with QAs both on ​     ​ team and other teams, as well as other employees and ​     ​ own supervisors. By this point some employees agreed with​     ​, having their own issues with the pay system, but for themselves mostly looked toward individual solutions such as leaving the company or transferring to different teams.

Following a company-wide meeting on November 12, 2018, the Charging Party complained to another employee about the Employer's failure to acknowledge Veterans Day and about ​     ​ pay issues. The employee set up a meeting with the ​     ​”) and the ​     ​ to discuss the Veterans Day issue. Before the meeting, the Charging Party expressed ​     ​ optimism to a coworker, who warned the Charging Party to be careful, since the ​     ​ oversaw the new pay plan. At the meeting the Charging Party brought up ​     ​ pay issue. The ​     ​ responded with hostility, noting that another employee had informed management that the Charging Party was complaining to employees about pay. The ​     ​ told the Charging Party that ​     ​”needs to be accepting of ​     ​ pay and that ​     ​ shouldn't complain about not being paid enough, that they wanted ​     ​ to be engaged” in ​     ​ work.

The Charging Party discussed what happened at the meeting with ​     ​ new ​     ​, who expressed surprise at how hostile and upsetting the meeting had been. ​     ​ told the Charging Party that ​     ​ job should not upset ​     ​ so much, and if ​     ​ was not happy ​     ​ should not work there. ​     ​ also offered to help with ​     ​ resume.

Shortly thereafter, the ​     ​ emailed the Chasing Party that ​     ​ former ​     ​ denied ever having guaranteed that ​     ​ would make the same pay under the new system as ​     ​ had previously made. The Charging Party returned to ​     ​ current ​     ​ to again complain about ​     ​ pay situation. The ​     ​ told ​     ​ that ​     ​ did not have to work at the Employer, and that ​     ​ needed to become more engaged and “fix ​     ​ brand”. The Charging Party's ​     ​ offered to help ​     ​ whether that was looking for a new job or fixing ​     ​ “brand” and becoming more engaged. The Employer assigned the Charging Party a different ​     ​ in December 2018.

On January 9, 2019, the Charging Party raised the pay issue to a QA in another department and asked if ​     ​ group was looking to hire anyone. When the QA asked ​     ​ manager whether they were hiring, the manager immediately asked if it was the Charging Party who wanted to know. The QA confirmed that, and in response the manager said that there had been problems with the Charging Party and that ​     ​ had not met ​     ​ hours in the previous year.

Two days later, the Charging Party's most recent ​     ​ called ​     ​ into ​     ​ office to ask why ​     ​ was talking to managers outside ​     ​ team. The Charging Party responded that ​     ​ was just looking to move and that ​     ​ thought ​     ​ current management was not interested in helping ​     ​ had been dishonest with ​     ​, and wanted ​     ​ to quit. When the ​     ​ stated that ​     ​ wished ​     ​ had come to ​     ​ first, the Charging Party asked why ​     ​ could not talk to ​     ​ coworkers on other teams. The ​     ​ reiterated that ​     ​ wished ​     ​ had come to ​     ​ first, The ​     ​ also told ​     ​ that ​     ​ name would probably come up at ​     ​ managers meeting and asked ​     ​ what ​     ​ should say. The Charging Party asked ​     ​ to gauge whether management wanted ​     ​ to leave. In response, the ​     ​ told the ​     ​ Charging Party that the company was not for everyone, and that it would be ok if ​     ​ went to work somewhere else if ​     ​ was unhappy. ​     ​ also shared a personal story where ​     ​ stayed at a job longer than ​     ​ should have. At the subsequent managers meeting, management decided to terminate the Charging Party.

On January 16. 2019, the Charging Party's former and current ​     ​ met with ​     ​. ​     ​ first ​     ​ told ​     ​ that ​     ​ was fired, stating that “we know you are not happy here. You're disengaged. You're not happy and you've been talking about your pay to other people. Today will be your last day.”

ACTION

We conclude that the Charging Party's campaign about the pay issue was protected concerted activity, and that the Employer violated Section 8(a)(1) when it terminated ​     ​ for that activity. [1] We also conclude that the Employer violated Section 8(a)(1) by telling the Charging Party that ​     ​ “shouldn't complain about not being paid enough” and by informing ​     ​ that ​     ​ was being terminated for “talking about ​     ​ pay to other people.” However we conclude that the Employer did not violate Section 8(a)(1) when two ​     ​, in response to the Charging Party's complaints to them about ​     ​ pay, suggested she might be happier leaving the company.

I. The Charging Party Engaged in Protected Concerted Activity by Repeatedly Raising Pay and Hour Issues with Coworkers, and ***** Was Unlawfully Terminated for that Activity.

The governing standards for determining whether employee activity is concerted are set forth in the Board's decisions in Meyers Industries. [2] In Meyers I, the Board held that “[i]n general, to find an employee's activity to be ‘concerted,’ we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” [3] In Meyers II, the Board on remand “fully embraced” the Third Circuit's holding in Mushroom Transportation that individual employees also act concertedly where they “seek to initiate or to induce or to prepare for group action.” [4] The Board further noted that activity may be concerted that “in its inception involves only a speaker and a listener, for such activity is an indispensable preliminary step to employee self-organization.” [5] As the Third Circuit had noted in Mushroom Transportation:

[I]nasmuch as almost any concerted activity for mutual aid or protection has to start with some kind of communication between individuals, it would come very near nullifying the rights of organization and collective bargaining guaranteed by Section 7 of the Act if such communications are denied protection due to lack of fruition. [6]

In Whittaker Corp, the Board further clarified that the object of inducing group action need not be express and may be inferred from the circumstances.” [7]

The Board has stated that it is “obvious” that discussions about wages are necessary to organizational activity, and that “dissatisfaction due to low wages is the grist on which concerted activity feeds.” [8] This long-held principle is not contradicted by the Board's recent decision in Alstate Maintenance, where the Board found that a skycap's sole complaint to a supervisor about a customer's tip practice was neither concerted nor for the purpose of mutual aid or protection. [9] There, the Board concluded that the skycap's single statement that “[w]e did a similar job a year prior and we didn't receive a tip for it,” while said in front of other employees, was not intended to induce group action about a workplace concern but instead amounted to “mere griping” about a customer's tip history. [10] The Board also found that the skycap's statement was not for the purpose of mutual aid or protection because the employer had no control over the customer's tip practice. [11]

Unlike in Alstate, the Charging Party's conduct here was for employees' mutual aid or protection because it concerned the pay structure, pay amount, and hours of work requirements maintained by the Employer and over which it exerted full control. Also, unlike the skycap's isolated gripe in Alstate, the Charging Party acted concertedly by embarking on a dedicated campaign to enlist QAs' support against the new pay structure, which affected them all, and the pay cut resulting from ​     ​ inability to work overtime hours. While some of the Charging Party's complaints were about ​     ​ promise to ​     ​ that ​     ​ overall salary would remain the same, those complaints were intertwined with ​     ​ larger ongoing complaints about pay and hours that were shared by some of ​     ​ coworkers. [12] Although the Charging Party was met with at most only passive agreement from coworkers rather than a willingness to join ​     ​ in seeking concrete action, the lack of “fruition” in ​     ​ campaign to solicit employees' support for ​     ​ complaints against the new system does not nullify the concertedness of ​     ​ conduct. [13]

The Employer discharged the Charging Party because of ​     ​ protected concerted activity, and thereby violated Section 8(a)(1) of the Act. To establish unlawful discrimination under Section 8(a)(1), the General Counsel must first demonstrate by a preponderance of the evidence that animus toward protected activity was a “motivating factor” for an adverse action against an employee. [14] To do that, the General Counsel must show that the employee was engaged in protected activity, that the employer had knowledge of that activity, and that the employer's hostility to that activity “contributed to” its decision to take the adverse action. [15]

In Kitsap Tenant Support Services, Inc., Chairman Ring explained his view that Wright Line is “inherently a causation test,” and, therefore, the essential question is whether there is a nexus between an employee's protected activity and the challenged adverse action. [16] As Chairman Ring emphasized, “[n]ot just any evidence of animus against protected activity generally” will satisfy the Wright Line requirement; instead the General Counsel must show evidence of animus that was a motivating factor for the specific adverse employment action at issue. [17] The General Counsel agrees with that articulation of the Wright Line standard.

The Region should argue that, under this correct articulation of the Wright Line standard, the record establishes that the Charging Party's protected activity was a motivating factor in ​     ​ discharge. It is clear that the Charging Party's protected concerted discussions about pay and hours with ​     ​ coworkers “contributed to” the Employer's decision, since the Employer specifically listed “talking about ​     ​] pay to other people” as a reason for ​     ​ discharge. Moreover, there is abundant evidence of animus directed specifically at the Charging Party's protected activity regarding ​     ​ pay concerns. In addition to the 8(a)(1) statements discussed below, the Employer made it clear that the Charging Party's discontent was widely discussed and disapproved of by management. [18] Finally, the Employer cannot meet its Wright Line burden of establishing that it would have discharged the Charging Party independent of ​     ​ protected concerted activity; its argument that the Charging Party was discharged for underperforming is a post-hoc explanation unsupported by any contemporaneous documentary evidence.

II. The Legality of the Allegedly Unlawful Employer Statements

We conclude that the CIO's statement to the Charging Party to stop discussing ​     ​ pay, and the statement that the Charging Party was being terminated because you've been talking about your pay to other people,” were unlawful under Section 8(a)(1). Although the Charging Party had discussed ​     ​ pay with both ​     ​ coworkers and ​     ​, the ​     ​ directive was preceded by a statement that the ​     ​ was aware that the Charging Party was complaining to ​     ​ coworkers. Thus the directive clearly was addressed towards those pay discussions, and not towards ​     ​ (unconcerted) complaints to the ​     ​. The statement by the ​     ​ in the Charging Party's termination meeting referencing ​     ​ pay discussions with “other people” as the cause for ​     ​ discharge also independently violated Section 8(a)(1). However, with regard to the allegation that the Employer, through these statements, promulgated an unlawful rule, we conclude that the statements would not reasonably have been understood as orally promulgating a general rule against talking about pay. There was no directive communicated to any other employees, and the statements would not have been construed as a rule of general applicability even if other employees became aware of them. [19]

With regard to the statements by ​     ​ suggesting that the Charging Party should leave the company if ​     ​ were not happy, we conclude that those statements did not violate Section 8(a)(1). The Charging Party was not engaged in protected concerted activity when ​     ​ complained to ​     ​ and ​     ​ about ​     ​ pay. While some coworkers had agreed with the Charging Party that there were problems with the new pay system, there is no evidence that, in ​     ​ discussions with ​     ​, the Charging Party was bringing a “group complaint to the attention of management.” [20] The evidence instead indicates that ​     ​ conversations with management focused on the specifics of ​     ​ own issues, such as whether ​     ​ had promised the Charging Party ​     ​ would make the same salary by the end of the year and ​     ​ inability to work overtime. We therefore conclude that, even assuming that these statements could be considered veiled “threats,” they were not unlawful because they were not in response to protected concerted activity and did not direct the Charging Party to stop engaging in protected concerted activity.

Accordingly, the Region should issue complaint, absent settlement, consistent with the above analysis.

/s/

J.L.S.

ADV.14-CA-234530.Response.Gallup​     ​