Most employers are aware that under the National Labor Relations Act (NLRA), it is unlawful for an employer to prohibit employees from discussing wages among themselves, or to threaten an employee with discharge if they engage in such discussions.

Recently, the National Labor Relations Board (NLRB) took that premise one step further, finding that an employer violated the NLRA when management fired an employee because it believed he may have discussed wages with other employees. Alternative Energy Applications, Inc. and David Rivera-Chapman, Case 12-CA-072037 (December 16, 2014).

In that case, David Rivera-Chapman (“Rivera”) was hired in 2011 by Alternative Energy Applications, Inc., as a driver/installer at wage of $9.00 per hour. Although the company typically gave each employee a $1.00/hour raise after six weeks, Rivera was given an early raise after only a few weeks. At the time of that raise, however, Rivera was told by his supervisor “I do not want you talking to anyone else about this because we have fired employees in the past for talking about their wages.”

During his brief period of employment – less than two months – Rivera frequently complained about pay and working conditions. During that same period, however, Rivera’s supervisors and co-workers expressed their opinions that Rivera was not a good employee. As an example, during his employment, and while improperly installing insulation in apartment attics, Rivera’s foot went through the ceiling of an apartment on two different occasions, creating cost to the company for repairs.

At a meeting on a date after the first ceiling incident but before the second, company management made the decision to terminate Rivera’s employment. Notes from that meeting indicate that Rivera would be fired because he did not fit the company “philosophy” and because fellow employees complained about working with him. Rivera was fired after the second ceiling incident was reported.

Rivera filed an OSHA complaint with respect to the first ceiling incident. In response to that complaint, the company – through its attorney – sent a letter to the OSHA stating that Rivera was not fired for filing an OSHA complaint, but instead was fired for reasons including the fact that he “undercut morale” among the company’s employees by disclosing his rate of pay to other employees, which the company learned when it received a call from the mother of another employee who called to complain.

An Administrative Law Judge (ALJ) determined that the company violated the NLRA by instructing Rivera not to discuss wages, and by threatening to fire him if he did so. But the ALJ found that the NLRB’s General Counsel had failed to show that the company discharged Rivera because of its belief that he had discussed wages with other employees. While the ALJ acknowledged that the company essentially admitted as much in its letter to the OSHA, he also found that such statement was not supported by other evidence or testimony, and recommended that the discharge allegation be dismissed.

Upon review, a 3-member panel of the NLRB upheld the ALJ’s determination that the company violated the Act through its instruction and threats related to wage discussions, but reversed the remainder of the ALJ’s decision, finding instead that the company unlawfully fired Rivera on the belief that he had discussed wages with other employees. The decision was 2-1, with Member Miscimarra filing a lengthy and thorough dissent to the second portion of the decision.

The Board’s decision hinged largely on the facts that: the company, through its letter to the OSHA, had made an admission about its reason for firing Rivera; one employee stated that Rivera had complained that wages were too low; and the supervisor’s earlier threat to Rivera regarding termination was evidence of the actual reason for the firing.

In order to defend itself against allegations that it had violated the NLRA, the company was required to prove that it would have taken the adverse action even absent the fact of any protected activity. According to the Board panel in this case, “the same principles apply where, as here, the complaint alleges that an employer has retaliated against an employee in the belief that the employee engaged in protected activity.”

On that basis, the NLRB determined that the company’s proffered reason for the firing – that Rivera “had a bad attitude and a poor work ethic” – was insufficient to show that the company would have fired Rivera absent its belief that he had been discussing wages with other employees, and therefore, Rivera’s firing violated the NLRA.

The Board went further to state specifically that the NLRA “protects all employees, not just exemplary employees” from adverse action against protected activity, and reinstated Rivera with back pay and benefits, interest, and payment for adverse tax consequences of the award. It also directed that the company remove from its files any reference to the firing.

The difficulty in this case, and the primary basis for the dissent, is that the negative decision was based largely on the circumstantial evidence created by the company’s letter to OSHA asserting its belief that Rivera had discussed wages with others, and not on any evidentiary support of concerted activity which, pursuant to previous NLRB decisions, requires “initiating, inducing or preparing for group action.” Such an interpretation seems to create new ground for the Board’s decision.

Employers must be aware of the broad interpretation given by the NLRB to the question of what constitutes concerted activity, and should recognize that in this case, the company’s belief that the employee was engaged in such conduct, even without more, was sufficient basis for a violation of the NLRA.