12/13/2024: Still Illegal to Fire Workers for Discussing Wages

A successful motion for reconsideration

B & L, Inc., d/b/a Boyds Drug Mart, 373 NLRB No. 143, 18-CA-321513 (Published Board Decision)

Tammy Snyder worked as a pharmacy technician at Boyds Drug Mart from 2017 until her termination in July 2023. In March 2023, she discussed wage disparities with coworker Lisa Smallbrock, specifically regarding a newer employee who was being paid more than them. Management learned of this discussion and told Snyder it was "not appropriate and disruptive" to discuss wages with coworkers.

Between March and July 2023, Snyder encouraged another coworker, Alisa Rowley, to seek a wage increase. In May 2023, Snyder secured her own wage increase from $19 to $21 per hour after telling management she had received an outside offer.

On July 6, 2023, management issued Snyder a written warning for discussing wages with coworkers. The warning stated that wage discussions should not be held with other employees and should only be directed to management. Four days later, on July 10, management terminated Snyder.

Snyder filed an unfair labor practice charge. Administrative Law Judge Amchan found that Boyds Drug Mart violated Section 8(a)(1) of the National Labor Relations Act by:

• Telling employees not to discuss wages

• Issuing the written warning

• Terminating Snyder

• Making coercive statements about wage discussions

The NLRB affirmed these findings in December 2024. The Board ordered full reinstatement for Snyder, along with backpay, compensation for job search expenses, and compensation for adverse tax consequences from receiving a lump sum payment.

The three-member Board panel unanimously agreed that discussing wages is protected concerted activity under Section 7 of the NLRA, and that the employer's stated reasons for terminating Snyder were pretextual. One Board member, Kaplan, dissented only on the scope of make-whole remedies available under Thryv, Inc.

The Board ordered Boyds Drug Mart to post notices informing employees of their rights to discuss wages and working conditions, and affirming that the company would not interfere with those rights in the future.

Significant Cases Cited

• Meyers Industries, 268 NLRB 493 (1984) - Established that "concerted activities" are those engaged in with or on authority of other employees, not solely by and for an individual employee.

• Alternative Energy Applications, 361 NLRB 1203 (2014) - Held that employee wage discussions are "inherently concerted" regardless of express intent for group action.

• Thryv, Inc., 372 NLRB No. 22 (2022) - Established requirement to compensate discriminatees for direct or foreseeable pecuniary harms (though Member Kaplan dissented on this point).

List Industries, Inc., 373 NLRB No. 146, 13-CA-278248 (Published Board Decision)

The case involved List Industries, Inc. and allegations of unfair labor practices during a union organizing campaign by Teamsters Local 142 at the company's Munster, Indiana facility. After the union filed a petition, the company engaged in various alleged unfair labor practices, including terminating two leading union supporters. The union lost the subsequent election.

ALJ Decision

Administrative Law Judge Steckler found multiple violations of Section 8(a)(1) and (3), including:

• Threats of discharge for union activity

• Creating impression of surveillance

• Promises of benefits to discourage unionization

• Unlawful enforcement of cell phone policy

• Unlawful termination of two union supporters (Avelar and Perez)

The ALJ recommended a Gissel bargaining order due to the serious and pervasive nature of the violations.

NLRB Decision

The Board largely affirmed the ALJ's findings of violations but reversed on two points:

1. Reversed the finding that the company maintained an unlawful distribution policy, as this was not properly alleged in the complaint

2. Reversed the finding of unlawful impression of surveillance regarding statements to employee Avelar, as the supervisor had revealed the source of her information

The Board adopted a Gissel bargaining order remedy, finding the violations were serious enough to make a fair election unlikely. The Board emphasized the company's swift retaliation against union supporters and the lingering effects of the unlawful terminations.

Significant Cases Cited

• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) - Authorizes bargaining orders where employer unfair labor practices make fair election impossible

• Wright Line, 251 NLRB 1083 (1980) - Test for determining discriminatory motivation in discharge cases

• Burnup & Sims, 379 U.S. 21 (1964) - Protects employees from discharge based on good faith but mistaken belief of misconduct during protected activity

• General Motors LLC, 369 NLRB No. 127 (2020) - Framework for analyzing discipline for abusive conduct during protected activity

Garten Trucking Lc, 373 NLRB No. 147, 10-CA-279843 (Published Board Decision)

In the underlying decision (373 NLRB No. 94), issued September 17, 2024, the Board found multiple violations of Sections 8(a)(1) and 8(a)(3) by Garten Trucking LC. The Board also severed and remanded several allegations regarding the employer's handbook rules for evaluation under Stericycle, Inc., 372 NLRB No. 113 (2023), which established a new framework for analyzing workplace rules.

The Union (Association of Western Pulp and Paper Workers) filed a motion for reconsideration, primarily arguing that the Board's order was unclear about whether the remand included the rule prohibiting employees' personal use of the internet.

The Board acknowledged that while it had specifically listed several handbook rules for remand (including rules about social networking, conduct after separation, confidential information, etc.), it had not explicitly addressed the internet use rule. The Administrative Law Judge had only briefly referenced this rule because the General Counsel had conceded it was lawful under then-existing precedent from Boeing Co., 365 NLRB 1494 (2017), which established standards for evaluating workplace rules. However, since Boeing was overruled by Stericycle, the Board determined the internet use rule should also be remanded for analysis under the new framework.

Significant Cases Cited

• Stericycle, Inc., 372 NLRB No. 113 (2023) - Established new standards for analyzing workplace rules

• Boeing Co., 365 NLRB 1494 (2017) - Previous framework for analyzing workplace rules (now overruled)

Techordia, LLC, 32-RC-353650 (Regional Election Decision)

On October 28, 2024, the Alameda Information Technology Workers' Union filed a petition seeking to represent approximately six employees at Techordia, LLC, a managed IT services company in Alameda, California.

The only disputed issue was whether the Support Specialist Lead position should be excluded from the unit as a statutory supervisor. Currently, only one employee, Daniel Fruzzetti, holds this position.

Techordia's management structure consists of Wilson Lee (founder/owner/CTO), Benjamin Schuyler (business partner), and Amber Reynolds (CFO). The company provides IT services including server network installation, maintenance, data storage, cybersecurity, and help desk support.

The Support Specialist Lead's role involved:

• Monitoring employee computer activity through ActivTrak software

• Participating in some hiring interviews

• Distributing helpdesk tickets

• Creating a new hire curriculum document

• Providing training and mentorship

• Monitoring attendance and break times

• Communicating expectations to employees

The Regional Director found insufficient evidence that the Lead possessed any supervisory authority:

• While the Lead participated in two hiring interviews, management rejected the Lead's recommendation to interview more candidates

• The Lead monitored employee conduct but could not impose discipline

• The Lead distributed work based on routine factors like availability and workload

• Management, not the Lead, made decisions about bonuses and time off

• The Lead's training and mentoring activities were based on greater experience, not supervisory authority

• The Lead had no authority over promotions, transfers, layoffs or terminations

The Regional Director directed a manual election to be held December 19, 2024. The bargaining unit includes "all full-time and regular part-time support specialists, support specialist leads, lead technical specialists, and technical office administrators" at the Alameda facility.

The employer must provide a voter list by December 13, 2024 and post election notices at least 3 working days before the election. The Regional Director denied the employer's request for Cantonese language ballots, finding insufficient justification given the employees' demonstrated English proficiency in their work communications.

Significant Cases Cited

• NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001) - Established three-part test for supervisory status requiring authority, independent judgment, and acting in employer's interest

• Oakwood Healthcare, 348 NLRB 686 (2006) - Defined key terms and analysis for supervisory status determinations

• Golden Crest Healthcare Center, 348 NLRB 727 (2006) - Established that purely conclusory evidence is insufficient to prove supervisory status

• Croft Metals, 348 NLRB 717 (2006) - Clarified application of Oakwood Healthcare framework