04/11/2025: Discussing Wages With Coworkers Still Protected Activity
Some failed election objections.
Imlay Plumbing, Inc., JD-31-25, 27-CA-314575 (ALJ Decision)
This case involves Imlay Plumbing, Inc., a residential and commercial plumbing company in Cedar City, Utah, and allegations that it violated Section 8(a)(1) of the National Labor Relations Act. The charging party, Tristan Patnode, was hired by the company in August 2022 after an initial interview with owner Kadin Imlay in April 2022. Patnode claimed that during his interview, Imlay agreed to pay him $20 per hour for the first 30 days and then increase his rate to $26 per hour.
In October 2022, Patnode texted Imlay about the promised wage increase. Imlay responded that he had forgotten about the conversation and would talk to the office about making changes. Patnode testified that he believed his wage had been increased to $26 per hour based on this exchange and his bank deposit amounts, though company records showed he was only being paid $20 per hour.
Between October 2022 and January 2023, Patnode discussed wages with several coworkers, including telling them he believed he was making $26 per hour. Some coworkers reported these conversations to Imlay, claiming Patnode had said he was making $27 or $28 per hour. These wage discussions apparently caused discontent among employees who were making less than what Patnode claimed to be earning.
On January 11, 2023, Imlay fired Patnode. According to Patnode, Imlay told him he was being terminated for discussing wages with coworkers, stating that the company had a "strict policy against discussing wages" because "it only breeds negativity." Imlay claimed he fired Patnode for lying about his wages to coworkers. Immediately after the termination, Imlay sent a company-wide message stating: "My policy on talking about wages has always been in place for a good reason from the beginning. Nothing but negative comes from it and it causes problems." He also instructed employees to come directly to him with wage concerns.
The ALJ found that Patnode was more credible than Imlay, whose testimony contained inconsistencies and shifting explanations for the termination. The ALJ concluded that Patnode genuinely believed he was making $26 per hour and did not deliberately lie to coworkers. Even if Patnode had exaggerated his wage, the ALJ noted that such discussions are protected concerted activity under Section 7 of the Act.
The ALJ found that Respondent violated Section 8(a)(1) of the Act by:
Interrogating employees about wage discussions
Promulgating and maintaining a rule prohibiting employees from discussing wages
Threatening employees with discharge for discussing wages
Instructing employees to discuss wage concerns only with the owner
Discharging Patnode for engaging in protected concerted activity (discussing wages)
The ALJ ordered Imlay Plumbing to offer Patnode reinstatement with backpay, remove references to the unlawful discharge from his file, post notices, and cease and desist from interfering with employees' Section 7 rights.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established framework for analyzing discriminatory discharge cases where both lawful and unlawful motives may be present.
Rossmore House, 269 NLRB 1176 (1984): Set forth the totality-of-circumstances test for determining whether interrogation is coercive under the Act.
Stericycle, Inc., 372 NLRB No. 113 (2023): Established standard for assessing challenges to work rules under Section 8(a)(1).
Alternative Energy Applications, 361 NLRB 1203 (2014): Held that employee wage discussions are "inherently concerted" and protected regardless of whether they aim to induce group action.
Jeannette Corp. v. NLRB, 532 F.2d 916 (3d Cir. 1976): Established that employee dissatisfaction about wages is protected activity and employer concerns about "jealousies and strife" do not justify prohibiting wage discussions.
Pacifica Hotel Company D/B/a Jamaica Bay Inn Marina Del Rey, Tapestry Collection by Hilton, 31-RC-352713 (Regional Election Decision)
This case involves a representation election held on November 12, 2024, at the Jamaica Bay Inn in Marina del Rey, California. The election was conducted pursuant to a petition filed by Unite Here Local 11 seeking to represent employees at the hotel. The tally showed 38 votes for the union and 37 votes against, with no challenged ballots, resulting in a union victory by a single vote.
The employer, Pacifica Hotel Company, filed six objections to the election, alleging various forms of misconduct. Regional Director Danielle Pierce analyzed each objection and determined that Objections 1, 2, 3, and 6 should be overruled without a hearing, while Objections 4 and 5 raised substantial factual issues warranting a hearing.
Legal Analysis of Objections
Objection 1: Alleged Threats and Discriminatory Remarks
The employer claimed a union agent made threatening and discriminatory statements to coerce an employee into supporting the union. The Regional Director overruled this objection because:
The offer of proof failed to establish when the alleged conduct occurred
The evidence was insufficient to establish that the employee making the statements was an agent of the union
Even treating the conduct as third-party behavior, it did not create "a general atmosphere of fear and reprisal" necessary to set aside an election
Objection 2: Alleged Intimidating Remarks
The employer alleged union representatives made threatening remarks against employees who didn't support the union. This objection was overruled because:
The timing of the alleged statements wasn't established
The evidence consisted primarily of hearsay
For statements attributed to a rank-and-file employee, agency status wasn't established, and the conduct didn't meet the standard for third-party misconduct
Objection 3: Unauthorized Access and Confidential Information
The employer claimed a union agent granted unauthorized access to non-public areas and shared confidential employee information. This objection was overruled because:
The alleged conduct occurred before the critical period (before the petition was filed)
The evidence failed to establish agency status
The delegation entered with a manager's permission
The evidence regarding confidential information was hearsay
Objections 4 and 5: Photographs and Videos of Employees
These objections alleged the union required employees to take photographs with signed union cards, falsely claimed this was legally required, threatened to reveal these photos, and required employees to film scripted videos. The Regional Director found these objections raised substantial and material factual issues warranting a hearing.
Objection 6: Atmosphere of Fear and Reprisal
This was a catch-all objection repeating earlier allegations and adding claims about confrontations before the election and deportation threats. It was overruled because it largely repeated previously addressed allegations, and new allegations lacked sufficient evidence to establish they created a general atmosphere of fear and reprisal.
The Regional Director concluded by scheduling a hearing for April 22, 2025, on Objections 4 and 5 only, with instructions on how parties may file requests for review of the decision.
Significant Cases Cited
Lockheed Martin Skunk Works, 331 NLRB 852 (2000): Established that the Board will not lightly set aside a representation election.
Westwood Horizons Hotel, 270 NLRB 802 (1984): Defined the standard for third-party conduct as creating "a general atmosphere of fear and reprisal rendering a free election impossible."
Taylor Wharton Division, 336 NLRB 157 (2001): Outlined nine factors to consider when determining whether a party's conduct interferes with employee free choice.
Harborside Healthcare, Inc., 343 NLRB 906 (2004): Articulated a two-part standard for evaluating pro-union supervisory conduct.
Ideal Electric & Mfg. Co., 134 NLRB 1275 (1961): Established that only conduct occurring after the petition filing date may be the subject of an objection.