Taylor Made Transportation Services, Inc., (2012)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Taylor Made Transportation Services, Inc. and Kimberly Tutt. Case 052013CA2013036646

June 7, 2012

DECISION AND ORDER

BY MEMBERS HAYES, GRIFFIN, AND BLOCK

On December 15, 2011, Administrative Law Judge Bruce D. Rosenstein issued the attached decision. The Respondent filed exceptions and a supporting brief. The Acting General Counsel filed an answering brief, crossexceptions, and a supporting brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions¹ and briefs and has decided to affirm the judge2019s rulings, findings,² and conclusions and to adopt the recommended Order as modified and set forth in full below.³

We agree with the judge that the Respondent violated Section 8(a)(1) of the Act by suspending and terminating employee Kimberly Tutt, but our analysis differs slightly from the judge2019s. As the judge found, the record here convincingly demonstrates that the Respondent took action against Tutt because she violated the Respondent2019s unlawful rule against disclosing wage rates. Accordingly, this case is governed by the standard recently articulated in Continental Group, Inc., 357 NLRB No. 39 (2011), where the Board explained that:

[D]iscipline imposed pursuant to an unlawfully overbroad rule violates the Act in those situations in which an employee violated the rule by (1) engaging in protected conduct or (2) engaging in conduct that otherwise implicates the concerns underlying Section 7 of the Act.

¹ No exceptions were filed to the judge2019s findings that the Respondent violated Sec. 8(a)(1) of the Act by maintaining a handbook rule prohibiting employees from disclosing their wage rates and by distributing an April 20, 2011 memorandum threatening employees with discipline if they were to breach the rule.

² The Respondent has excepted to some of the judge2019s credibility findings. The Board2019s established policy is not to overrule an administrative law judge2019s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

³ We shall modify the judge2019s recommended Order to conform to the violations found and to the Board2019s standard remedial language. We shall substitute a new notice to conform to the Order as modified.

Slip op. at 4.⁴

Here, we need not pass on the judge2019s finding that Tutt was engaged in protected concerted activity when she violated the unlawful rule, because Tutt clearly was 201cengage[d] in conduct that otherwise implicates the concerns underlying Section 7 of the Act,201d under the second prong of the test set forth in Continental Group. As the Board recently stated in Parexel International, LLC, 356 NLRB No. 82, slip op. at 3 (2011),

The Board has long held that Section 7 201cencompasses the right of employees to ascertain what wages are paid by their employer, as wages are a vital term and condition of employment.201d Triana Industries, 245 NLRB 1258, 1258 (1979). In fact, wage discussions among employees are considered to be at the core of Section 7 rights because wages, 201cprobably the most critical element in employment,201d are 201cthe grist on which concerted activity feeds.201d Aroostook County Regional Ophthalmology Center, 317 NLRB 218, 220 (1995), enfd. in part 81 F.3d 209 (D.C. Cir. 1996); Whittaker Corp., 289 NLRB 933, 9332013934 (1988).

We find that Tutt engaged in conduct implicating Section 7 concerns by disclosing her wage rate to her fellow employees and, therefore, that the Respondent violated Section 8(a)(1) by suspending and discharging Tutt based on that conduct. We further note that the Respondent does not seek to establish an affirmative defense under Continental Group2014i.e., that Tutt2019s wage-related conduct interfered with the Respondent2019s operations and that Tutt was suspended and terminated for such interference2014nor would the record support such a defense.

ORDER

The National Labor Relations Board orders that the Respondent, Taylor Made Transportation Services, Inc., Baltimore, Maryland, its officers, agents, successors, and assigns, shall

1. Cease and desist from

   (a) Maintaining rules in its employee handbook that preclude employees from discussing their compensation

   ⁴ Applying Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the judge found that the Respondent failed to demonstrate that it would have taken the same actions against Tutt even if she had not discussed her wage rate with other employees. Assuming without deciding that Wright Line applies where employees have been retaliated against for violating an unlawful rule by engaging in nonconcerted 201cconduct that otherwise implicates the concerns underlying Sec. 7 of the Act,201d the Respondent failed to make the requisite showing here. We agree with the judge that the Respondent2019s proffered reasons for acting against Tutt were pretextual.

   or pay rates, and distributing memoranda to employees threatening them with discipline for violating such rules.

   (b) Discharging or suspending employees who violate unlawful rules by engaging in discussion of their compensation or wage rates.

   (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

   (a) Rescind its April 20, 2011 memorandum and any rules in its employee handbook that preclude employees from discussing their compensation or pay rates and notify its employees in writing that it has done so.

   (b) Within 14 days from the date of this Order, offer Kimberly Tutt reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed.

   (c) Make Kimberly Tutt whole for any loss of earnings and other benefits suffered as a result of her unlawful suspension and discharge, in the manner set forth in the remedy section of the judge2019s decision.

   (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful suspension and discharge of Kimberly Tutt, and, within 3 days thereafter, notify her in writing that this has been done and that the unlawful suspension and discharge will not be used against her in any way.

   (e) Preserve and, within 14 days of a request or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

   (f) Within 14 days after service by the Region, post at its facility in Baltimore, Maryland, copies of the attached notice marked 201cAppendix.201d⁵ Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent2019s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper

   DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

   ⁵ If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading 201cPosted by Order of the National Labor Relations Board201d shall read 201cPosted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.201d

   notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since November 30, 2010.

   (g) Within 21 days after service by the Region, file with the Regional Director for Region 5 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

   Dated, Washington, D.C. June 7, 2012

   Richard F. Griffin, Jr., Member

   Sharon Block Member

   (SEAL) NATIONAL LABOR RELATIONS BOARD

   MEMBER HAYES, concurring.

   I agree with the judge2019s finding that, in the circumstances of this case, employee Kimberly Tutt was engaged in actual protected concerted activity when discussing her own wages with other employees, and that the Respondent unlawfully discharged her solely for this reason. Accordingly, I do not pass on whether, even if Tutt2019s conduct was not concerted, the discharge would be unlawful under the second prong of the test in Continental Group, 357 NLRB No. 39 (2011).

   Dated, Washington, D.C. June 7, 2012

   Brian E....