An employee’s complaints about his pay to coworkers was protected concerted activity under the National Labor Relations Act (NLRA), even though the employee was unsuccessful in enlisting any other employees to support his complaints, the Advice Division of the National Labor Relations Board’s (NLRB) Office of the General Counsel has decided.

Therefore, the NLRB found the employee’s termination for his wage complaints violated the NLRA and instructed the Regional Director for Region 14 to issue an unfair labor practice complaint on the employee’s unfair labor practice charge. Gallup, Inc., 14-CA-234530 (July 24, 2019, released Oct. 18, 2019).

Background

The employee was a quality assurance (QA) coordinator. When Gallup reclassified its QA employees from “exempt” to “non-exempt,” the employer reduced their base salary by $7,000 because the reclassified QA employees were newly entitled to overtime pay. The employer informed the employees that if they worked the same hours they had been working before, their overtime pay would make up for the lower base and equal the same amount they had earned as exempt employees.

Unhappy about the change, the employee raised the issue on several occasions with his QA coworkers and supervisors. Some employees agreed with the employee, but most responded that the new pay structure could be an improvement. Some who agreed with the employee later left the company or transferred to different teams.

Following a November companywide meeting, the employee raised the pay issue with the employer’s management. They informed the employee that a coworker had told them about the employee’s pay complaints to coworkers. They told the employee that he “need[ed] to be accepting of his pay and that he shouldn’t complain about not being paid enough.”

The employee asked employees in other departments about available jobs. The employee’s manager questioned why he was talking to employees on other teams. When the employee objected to the question, his manager emphasized that he wished the employee had come to him first, that the company was not for everyone, and that it would be okay if the employee went to work somewhere else if the employee was unhappy.

The employee subsequently was terminated and was told, “[W]e 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.”

The employee filed an unfair labor practice charge with the NLRB’s Region 14 office alleging the termination and the supervisors’ statements violated the NLRA. The Region 14 Regional Director referred the allegations to the Advice Division for assistance in deciding whether the allegations set forth violations of the NLRA.

Advice Division Decision

The Advice Division decided the termination violated the NLRA. Citing the “test” under the Board’s Meyers Industries decisions for determining whether activity is concerted, the Advice Division explained, “In 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.” It also explained that individual employees act concertedly where they “seek to initiate or to induce or to prepare for group action.” Meyers Industries, 268 NLRB 493 (1984); Meyers Industries, 281 NLRB 882 (1986).

The Advice Division distinguished the facts in the case from those in Alstate Maintenance, 367 NLRB No. 68 (Jan. 11, 2019). The Alstate employee’s complaints about a customer’s tip practices was not protected activity and, therefore, his termination for making those complaints did not violate the NLRA. There, the NLRB held that a single statement about one customer’s tip history, although said in the presence of other employees (in a meeting), was a mere gripe not intended to induce group action about a workplace concern. The tip comment also was not for the purpose of “mutual aid or protection” (a necessary element for a finding of protected concerted activity), because the employer had no control over the customer’s tip practice (and, therefore, could not remedy the employee’s complaint).

Unlike in Alstate, the employee’s conduct in the present case was for 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 had full control.

The Advice Division wrote:

Although the Charging Party was met with at most only passive agreement from coworkers rather than willingness to join him in seeking concrete action, the lack of “fruition” in his campaign to solicit employees’ support for his complaints against a new system d[id] not nullify the concertedness of the conduct.

Finally, the Advice Division found that it was clear the employee’s protected concerted discussions about pay and hours contributed to the termination decision; the employer specifically listed “talking about his pay to other people” as a reason for discharge.

The Advice Division concluded, “[N]otwithstanding the lack of success, the employee’s ongoing complaints to fellow employees about their pay was protected concerted activity and thus the employee’s discharge for that conduct violated Section 8(a)(1) of the Act.”

Regarding the statements, the directive to the employee to stop discussing his pay also was a violation of the NLRA, the Advice Division found. The statement that the employee should leave the company if he was not happy was not a violation, however, because that statement was made in response to the employee’s complaints about his own pay. Even assuming that statement may be taken as a veiled threat, the Advice Division explained, it was not unlawful because it was not in response to protected concerted activity and did not direct the employee to stop engaging in protected concerted activity.

In a footnote, the Advice Division urged the NLRB to overturn a line of cases arguably conflicted with the Meyers standard and in which the Board deemed statements about certain subjects “inherently” concerted. The NLRB previously has indicated its interest in revisiting this concept, but it has not yet been presented with a case in which the inherently concerted issue is raised. Citing Alstate, the General Counsel advised the Regional Director not to follow this “inherently concerted” theory of a violation of the NLRA.

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This Advice Memorandum illustrates that proper identification of protected concerted activity requires a detailed and fact-specific analysis. Employers are well-advised to weigh employment decisions that may involve more than one employee and protected topics carefully and to consult experienced labor counsel when necessary.

Please contact a Jackson Lewis attorney with any questions about this Advice Memorandum or the NLRB.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.