Drew's Tire Pros (19-CA-269254)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

DATE: May 3, 2021

TO:

Ronald K. Hooks, Regional Director

Region 19

FROM:

Richard A. Bock, Associate General Counsel

Division of Advice

SUBJECT: Drew’s Tire Pros

512-5036-3300-0000

Case 19-CA-269254

512-5036-5000-0000

512-5036-6720-2000

512-5036-6720-7300

The Region requested advice as to whether Drew’s Tire Pros (DTP) violated

Section 8(a)(1) of the Act when it discharged an employee (Charging Party) for

protesting the failure of

to properly quarantine after

apparent exposure to the COVID-19 virus. Applying Wright Line,1 we conclude

DTP violated Section 8(a)(1) because the Charging Party’s protest was protected

concerted activity, DTP knew of that activity, and the activity motivated DTP’s

discharge of the Charging Party.

FACTS

DTP is an auto parts store and repair shop in Pahrump, Nevada, employing

two salespeople and between 10 and 13 technicians and mechanics. The Charging

Party became employed there as a technician in

2018.

worked

approximately 40 hours a week and reported to the Shop Manager and the Owner.

On Monday, November 9, 2020, the Charging Party arrived at DTP shortly

before

regular starting time and was walking toward the shop when

was

approached by a group of employees who included two of the shop’s mechanics and

another technician (Mechanic 1, Mechanic 2, and Technician 1). They told the

Charging Party of

disclosure to them that members of

family had

tested positive for the COVID-19 virus and that

would soon be going home.

1 251 NLRB 1089 (1980), enforced on other grounds, 662 F.2d 899 (1st Cir. 1981),

approved in NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 399-403 (1983).

(b) (6), (b) (7

(b) (6), (b) (7)(C)

(b) (6), (b) (7

(b) (6), (b) (7

(b) (6), (b)

(b) (6), (b) (7)(C)

(b) (6), (b) (

(b) (6), (b) (

them that members of

family had

tested positive for the COVID-19 virus and that

would soon be going home.

1 251 NLRB 1089 (1980), enforced on other grounds, 662 F.2d 899 (1st Cir. 1981),

approved in NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 399-403 (1983).

(b) (6), (b) (7

(b) (6), (b) (7)(C)

(b) (6), (b) (7

(b) (6), (b) (7

(b) (6), (b)

(b) (6), (b) (7)(C)

(b) (6), (b) (

(b) (6), (b) (

(b) (6), (b) (7)(C)

Case 19-CA-269254

- 4 -

embodied in Meyers I5 and Meyers II.6 First and foremost, an employee’s activity is

concerted when acting collectively with, or on the authority of, other employees and

not solely on his or her own behalf.7 Secondly, concerted activity occurs when an

employee undertakes to initiate, induce, or prepare for group action by other

employees or behaves in some relation to group action that is intended to benefit

other employees.8 Even in the absence of preparation for, or anticipation of, group

action, some discussions amongst employees of certain vital elements of

employment raise concerns pivotal to their collective interests, which may render

the discussions inherently concerted.9 Individual acts of an employee may also be

concerted depending on the circumstances. For example, the Board may conclude

that the activities of a single employee addressing an employer’s group meeting of

employees are concerted.10 Additionally, the activities of a single employee can be

part of a continuous course of concerted activity or a logical outgrowth of that

activity.11 In general, whether an employee has engaged in concerted activity is a

question of fact to be resolved on the evidence as a whole and depends on his or her

actions being sufficiently linked to group activity.12

5 Meyers Indus., 268 NLRB 493 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d

941 (D.C. Cir. 1985).

6 Meyers Indus., 281 NLRB 882 (1986), aff’d sub nom. Prill v. NLRB, 835 F.2d 1481

(D.C. Cir. 1987), cert. denied, 487 U.S. 1205 (1988).

7 Meyers I, 268 NLRB at 497

to be resolved on the evidence as a whole and depends on his or her

actions being sufficiently linked to group activity.12

5 Meyers Indus., 268 NLRB 493 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d

941 (D.C. Cir. 1985).

6 Meyers Indus., 281 NLRB 882 (1986), aff’d sub nom. Prill v. NLRB, 835 F.2d 1481

(D.C. Cir. 1987), cert. denied, 487 U.S. 1205 (1988).

7 Meyers I, 268 NLRB at 497.

8 Meyers II, 281 NLRB at 887.

9 GENERAL COUNSEL MEMORANDUM 21-03, at 4-5 (Mar. 31, 2021). See infra for full

discussion of the concept.

10 Whittaker Corp., 289 NLRB 933, 934 (1988); Chromalloy Gas Turbine Corp., 331

NLRB 858, 863 (2000), enforced, 262 F.3d 184 (2d Cir. 2001).

11 Constellium Rolled Prods. Ravenswood, LLC, 366 NLRB No. 131, slip op. at 2

(2018), enforcement denied on other grounds & remanded, 945 F.3d 546 (D.C. Cir.

2019); Mike Yurosek & Son, Inc., 306 NLRB 1037, 1038-39 (1992), enforced, 53 F.3d

261 (9th Cir. 1995); Salisbury Hotel, 283 NLRB 685, 686-87 (1987); Every Woman’s

Place, Inc., 282 NLRB 413, 413 (1986), enforced mem., 833 F.2d 1012 (6th Cir.

1987); see JMC Transp., 272 NLRB 545, 549-50 (1984), enforced, 776 F.2d 612 (6th

Cir. 1985), supplemented, 283 NLRB 554 (1987).

12 NLRB v. City Disposal Sys., 465 U.S. 822, 830-31 (1984); Fresh & Easy

Neighborhood Market, Inc., 361 NLRB 151, 153 (2014); Meyers II, 281 NLRB at 884-

87; Meyers I, 268 NLRB at 497.

Case 19-CA-269254

- 6 -

The foregoing events are similar to what transpired in Alton H. Piester,

LLC,14 where the Board held that the individual acts of a discharged employee were

a continuous course of concerted activity under Section 7 of the Act. At a meeting

with the company’s truck drivers on January 13, 2007, the owner announced the

drivers would no longer be paid for time spent unloading palletized goods from their

trucks. The change sparked objections from several drivers at the meeting and

thereafter, but only the charging party continued objecting after January 2007

uous course of concerted activity under Section 7 of the Act. At a meeting

with the company’s truck drivers on January 13, 2007, the owner announced the

drivers would no longer be paid for time spent unloading palletized goods from their

trucks. The change sparked objections from several drivers at the meeting and

thereafter, but only the charging party continued objecting after January 2007.

During meetings with the owner and the company’s accountant in April 2007, the

charging party again voiced the drivers’ objections to the change and asked that the

unpaid time be reflected on their paystubs. Emotions boiled over at the last of those

meetings, where the charging party complained loudly and persistently and was

ultimately discharged. Notwithstanding the fact that more than two months had

elapsed between the January 13th meeting and the last encounter on April 2, 2007,

the Board found the charging party’s discharge unlawful because his individual

complaints about the change in compensation were part of a continuous course of

concerted activity beginning in January 2007.

Although we have resolved that the Charging Party’s verbal protests and

abstention from DTP’s workplace began as traditional group action and progressed

into individual acts that together formed a continuous course of concerted activity,

the Region should argue alternatively that the same activity is concerted under the

Board’s doctrine of “inherently” concerted activity. That doctrine emerged in Trayco

of South Carolina, Inc.,15 where the Board held that an employee’s discussions with

her co-workers about higher wages constituted concerted activity even though the

discussions did not contemplate group action. In reaching that decision, the Board

observed that the object of inducing group action need not be expressed but can

instead be implied from the subject matter of discussion

in Trayco

of South Carolina, Inc.,15 where the Board held that an employee’s discussions with

her co-workers about higher wages constituted concerted activity even though the

discussions did not contemplate group action. In reaching that decision, the Board

observed that the object of inducing group action need not be expressed but can

instead be implied from the subject matter of discussion. Because higher wages are

a “frequent objective of organizational activity,” the Board reasoned that the

employee’s discussions about that subject impliedly were concerted.16 The doctrine

14 353 NLRB 369, 372-73 (2008) (two-member board), enforced, 591 F.3d 332 (4th

Cir. 2010). Although Alton H. Piester, LCC, was issued by a panel that under New

Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010), was not properly constituted, it is

the Acting General Counsel’s view that Piester was soundly reasoned. The Region

should therefore urge the ALJ and Board to apply the principles set forth in that

case. See DHL Express, Inc. v. NLRB, 813 F.3d 365, 377 n.2 (D.C. Cir. 2016) (noting

that the rationale in a voided, two-member Board decision was “instructive”).

15 297 NLRB 630 (1990), enforcement denied, 927 F.2d 597 (4th Cir. 1991).

16 Id. at 634; accord Automatic Screw Prods., 306 NLRB 1072, 1072 (1992), enforced

mem., 977 F.2d 582 (6th Cir. 1992).

Case 19-CA-269254

- 7 -

was enlarged in Aroostook County Regional Ophthalmology Center,17 where the

Board decided that discussions about changes in work schedules were inherently

concerted activity despite the absence of any talk about the initiation of group

action

16 Id. at 634; accord Automatic Screw Prods., 306 NLRB 1072, 1072 (1992), enforced

mem., 977 F.2d 582 (6th Cir. 1992).

Case 19-CA-269254

- 7 -

was enlarged in Aroostook County Regional Ophthalmology Center,17 where the

Board decided that discussions about changes in work schedules were inherently

concerted activity despite the absence of any talk about the initiation of group

action. Like wages, the Board concluded that work schedules are a “vital term and

condition of employment” that are “likely to spawn collective action.”18 Lastly, in

Hoodview Vending Co.,19 the Board added the subject of “job security” to the list of

vital terms and conditions of employment which, when discussed between two or

more employees, will be regarded as inherently concerted activity. Such discussions

concern “the very existence of the employment relationship and [will] quickly ripple

through, and resonate with, the work force.”20

The inclusion of health and safety matters among the subjects of discussion

deemed to be inherently concerted activity is a logical and necessary extension of

the inherently concerted doctrine.21 Few subjects are of more vital concern to an

employment relationship than workplace health and safety issues.22 Safe and

healthy workplaces were woven into our social fabric through national legislation

enacted over 50 years ago.23 Moreover, the resolution of safety and health issues is

a frequent objective of organizational activity likely to spawn collective action,24

17 317 NLRB 218 (1995), enforcement denied in part on other grounds, 81 F.3d 209

(D.C. Cir. 1996).

18 Id. at 220.

19 359 NLRB 355 (2014), vacated, 2014 WL 2929781 (Jun. 27, 2014), reconsidered &

affirmed, 362 NLRB 690 (2015).

20 Id. at 357.

21 See Renewal by Andersen LLC KC, Case 14-CA-262563, Advice Memorandum

dated Apr

rganizational activity likely to spawn collective action,24

17 317 NLRB 218 (1995), enforcement denied in part on other grounds, 81 F.3d 209

(D.C. Cir. 1996).

18 Id. at 220.

19 359 NLRB 355 (2014), vacated, 2014 WL 2929781 (Jun. 27, 2014), reconsidered &

affirmed, 362 NLRB 690 (2015).

20 Id. at 357.

21 See Renewal by Andersen LLC KC, Case 14-CA-262563, Advice Memorandum

dated Apr. 9, 2021, at 7-8 (arguing that workplace safety and health issues are

inherently concerted); North West Rural Electric Cooperative, Case 18-CA-150605,

Advice Memorandum dated Sept. 21, 2015, at 9-12 (same).

22 Minnesota Mining & Mfg., 261 NLRB 27, 29 (1982), enforced sub nom. Oil,

Chemical & Atomic Workers Local 6-418 v. NLRB, 711 F.2d 348 (D.C. Cir. 1983).

23 Occupational Safety and Health Act of 1970, as amended (29 U.S.C. §651 et seq.).

24 E.g., Systems with Reliability, Inc., 322 NLRB 757, 757-60 (1996) (employees

discussed toxic effects of methyl ethyl ketone in their workplace before confronting

employer and threatening to contact OSHA); Detroit Newspaper Agency, 317 NLRB

1071, 1071 (1995) (confirming relevancy of union’s request for audit report

addressing health and safety matters).

Case 19-CA-269254

- 8 -

which is particularly true under life-threatening conditions of the kind posed by the

COVID-19 pandemic.25

Consequently, even if the Charging Party and Technicians 1 and 2 had not

gone as a group to

on November 9, 2020 to voice their concerns about

presence in the workplace as a source of COVID-19 infection, the discussions the

Charging Party had with

co-workers about the risk of such infection can and

should be regarded as inherently concerted activity.

II.

The Charging Party’s Concerted Activity Was

Protected

e Charging Party and Technicians 1 and 2 had not

gone as a group to

on November 9, 2020 to voice their concerns about

presence in the workplace as a source of COVID-19 infection, the discussions the

Charging Party had with

co-workers about the risk of such infection can and

should be regarded as inherently concerted activity.

II.

The Charging Party’s Concerted Activity Was

Protected.

To warrant protection under Section 7 of the Act, concerted activity must

have been undertaken “for the purpose of collective bargaining or other mutual aid

or protection.”26 The Board observed in Fresh & Easy Neighborhood Market, Inc.,27

that “[t]he concept of mutual aid or protection focuses on the goal of concerted

activity; chiefly, whether the employee or employees involved are seeking to

improve terms and conditions of employment or otherwise improve their lot as

employees.”28

In NLRB v. Washington Aluminum Co.,29 the Supreme Court held that a

group of 11 employees who had walked off their jobs to protest the bitter cold

temperatures inside their employer’s foundry acted for their mutual aid or

protection because reforming their uncomfortable surroundings fell squarely within

the goal of improving the terms and conditions of their employment and therefore

25 In re AFL-CIO, 2020 WL 3125324 (D.C. Cir. Jun. 11, 2020) (petition seeking

OSHA’s issuance of safety standard protecting against COVID-19 infections).

26 29 U.S.C. 157 (West 2021); Alstate Maintenance, LLC, 367 NLRB No. 68, slip op.

at 8.

27 361 NLRB at 153.

28 Id. (citing Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978) (emphasis in original

and internal quotation marks omitted).

29 370 U.S. 9 (1962).

(b) (6), (b) (

(b) (6), (b) (7

020) (petition seeking

OSHA’s issuance of safety standard protecting against COVID-19 infections).

26 29 U.S.C. 157 (West 2021); Alstate Maintenance, LLC, 367 NLRB No. 68, slip op.

at 8.

27 361 NLRB at 153.

28 Id. (citing Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978) (emphasis in original

and internal quotation marks omitted).

29 370 U.S. 9 (1962).

(b) (6), (b) (

(b) (6), (b) (7

(b) (6), (b) (7)(C)

Case 19-CA-269254

- 10 -

be reasonably expected to know of the activity or that it would have acquired

knowledge of the activity had it made a diligent inquiry.37

Here, there is little doubt that DTP actually knew of the Charging Party’s

protected concerted activity. DTP is a small, owner-operated business employing

about 15 individuals and is principally managed by

38 Moreover, the

statements by the Charging Party and

co-workers concerning

failure to sufficiently quarantine

after

apparent exposure to the COVID-

19 virus were made mostly to

personally.

IV.

DTP’s Animus Toward the Charging Party’s Section 7

Activity Motivated

Discharge, and Its Proffered

Rationale for That Discharge Was Pretextual.

The Board clarified in Tschiggfrie Properties, Ltd.,39 how the third element of

the Wright Line standard must be applied in analyzing whether an employer’s

adverse action against an employee was motivated by its animus toward the

employee’s protected concerted activity. Evidence of any animus toward activity of

that kind is ineffectual. The element can be proven only through evidence of

animus that supports a causal relationship between the employee’s protected

activity and the employer’s adverse action.40 Evidence of such a relationship has

been found in multiple scenarios. Adverse action that is contemporaneous with the

protected concerted activity is strongly suggestive of animus toward the activity.41

Similarly indicative is an employer’s derisive characterizations of employees

37 Reynolds Elec., 342 NLRB 156, 156-57 (2004)

oyee’s protected

activity and the employer’s adverse action.40 Evidence of such a relationship has

been found in multiple scenarios. Adverse action that is contemporaneous with the

protected concerted activity is strongly suggestive of animus toward the activity.41

Similarly indicative is an employer’s derisive characterizations of employees

37 Reynolds Elec., 342 NLRB 156, 156-57 (2004).

38 See Samsonite Corp., 206 NLRB at 349 (inference of actual knowledge was

warranted in small plant where supervisors had close contact with employees and

where protected concerted activity was carried out openly).

39 368 NLRB No. 120 (2019).

40 Id., slip op. at 1. Accord General Motors LLC, 369 NLRB No. 127, slip op. at 2

(2020).

41 Charter Communications, LLC, 366 NLRB No. 46, slip op. at 8 (2018); Lucky Cab

Co., 360 NLRB 271, 274 (2014), enforced mem., 818 F. App’x 638 (9th Cir. 2020);

Electronic Data Sys., 305 NLRB 219, 220 (1991), enforced in rel. part, 985 F.2d 801

(5th Cir. 1993).

(b) (6), (b) (7)(C)

(b) (6), (b) (

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C

Case 19-CA-269254

- 11 -

engaged in such activity.42 Animus has also been found to exist when an adverse

action has been taken only after the occurrence of protected concerted activity.43

The facts of this case point to a causal relationship between the Charging

Party’s protected concerted activity and

discharge and thus support a finding

that the discharge was motivated by DTP’s animus toward that activity

engaged in such activity.42 Animus has also been found to exist when an adverse

action has been taken only after the occurrence of protected concerted activity.43

The facts of this case point to a causal relationship between the Charging

Party’s protected concerted activity and

discharge and thus support a finding

that the discharge was motivated by DTP’s animus toward that activity. The

protests voiced to

initially by the Charging Party and

co-workers on

November 9, 2020 and subsequently by the Charging Party alone on November 12

and

were met by

discharge of the Charging Party on the latter

date—an adverse action which was contemporaneous with the protected concerted

activity.44 And when confronted with those verbal protests and the resulting

reluctance of certain employees to come to work,

derided the Charging

Party and the others as “bitches” in an obvious display of animosity toward them

and their protected activity. Lastly, during

discharge of the Charging Party on

never mentioned the earlier incidents of the Charging

Party’s allegedly poor performance.

asserted those incidents as grounds for the

discharge only after the protected concerted activity had occurred. Taken together,

these events are probative of DTP’s animus toward the Charging Party’s protected

concerted activity.45

DTP will be unable to rebut the Region’s initial showing that the Charging

Party was discharged for

protected concerted activity because its proffered

42 Bates Paving & Sealing, Inc., 364 NLRB No. 46, slip op. at 3 (2016).

43 Approved Elec., 356 NLRB 238, 239 (2010).

44 Although other employees who engaged in protected concerted activity, e.g.,

Mechanic 1 and Technician 1, were not discharged, they had not persisted in

continuing the concerted protest over workplace health and safety matters to the

degree the Charging Party did

fered

42 Bates Paving & Sealing, Inc., 364 NLRB No. 46, slip op. at 3 (2016).

43 Approved Elec., 356 NLRB 238, 239 (2010).

44 Although other employees who engaged in protected concerted activity, e.g.,

Mechanic 1 and Technician 1, were not discharged, they had not persisted in

continuing the concerted protest over workplace health and safety matters to the

degree the Charging Party did.

45 When an employer proffers a rationale for its adverse action against an employee

that is shown to be a pretext—i.e., false or not actually relied upon—the General

Counsel may offer the pretextual nature of that rationale as additional evidence

probative of the employer’s animus toward the employee’s protected concerted

activity. Such an inference is certainly not compelled, however, and may be made

only if the surrounding facts tend to reinforce that inference. Electrolux Home

Prods., 368 NLRB No. 34, slip op. at 3-4 (2019). Here, DTP’s pretextual rationale

for the Charging Party’s discharge is not the sole basis for satisfying the General

Counsel’s Wright Line burden. The Charging Party’s protected concerted activity

and

expressed animus toward that activity occurred close in time to the

disc

h reinforces the conclusion that a causal relationship existed. See

Mondelez Global, LLC, 369 NLRB No. 46, slip op. at 4 (2020).

(b) (6), (b) (7

(b) (6), (b) (7)(C)

(b) (6), (b) (7

(b) (6), (b)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7

(b) (6), (b) (7)(C) (b) (6), (b) (7)(C)

(b) (6), (b) (7)

(b) (6), (b) (7

(b) (6), (b) (7)(C)

Case 19-CA-269254

- 13 -

conclude that the charge has merit and, absent settlement, the Region should issue

complaint against DTP for violating Section 8(a)(1) of the Act.

/s/

R.A.B.

ADV.19-CA-269254.Response.Drew’s Tire Pros

(b) (6), (b) (7)(C)