December 9, 2019

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NLRB Advice Memo: Lack of Coworker Support Does Not Render Pay Complaints Unprotected

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

Jackson Lewis P.C. © 2019

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About this Author

Amanda Fray Employment Attorney Jackson Lewis Law Firm
Associate

Amanda J. Fray is an Associate in the Omaha, Nebraska, office of Jackson Lewis P.C. Her practice focuses on representing employers in various workplace law matters, including preventive advice and counseling. Ms. Fray has advised and assisted clients with a broad range of employment law matters, including the defense of discrimination, retaliation, and wrongful termination claims, non-compete and unfair competition disputes, and wage and hour collective actions. Ms. Fray has experience in state and federal court, and recently obtained a defense summary judgment order before the...

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