Taylor Made Transportation Services, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 2012

358 N.L.R.B. 427 (N.L.R.B. 2012)

427
TAYLOR MADE TRANSPORTATION SERVICES

358 NLRB No. 53
Taylor Made Transportation Services, Inc. and Kim-
berly Tutt. Case 05–CA–036646
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, cross-
exceptions, 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 judge’s 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 judge’s. As the judge found, the record here
convincingly demonstrates that the Respondent took ac-
tion against Tutt because she violated the Respondent’s
unlawful rule against disclosing wage rates. According-
ly, this case is governed by the standard recently articu-
lated in Continental Group, Inc., 357 NLRB 409 (2011),
where the Board explained that:

[D]iscipline imposed pursuant to an unlawfully over-
broad rule violates the Act in those situations in which
an employee violated the rule by (1) engaging in pro-
tected conduct or (2) engaging in conduct that other-
wise implicates the concerns underlying Section 7 of
the Act.
Slip op. at 4.4

1 No exceptions were filed to the judge’s findings that the Respond-
ent violated Sec. 8(a)(1) of the Act by maintaining a handbook rule
prohibiting employees from disclosing their wage rates and by distrib-
uting 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 judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 judge’s recommended Order to conform to the
violations found and to the Board’s standard remedial language. We
shall substitute a new notice to conform to the Order as modified.
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),
Here, we need not pass on the judge’s finding that Tutt
was engaged in protected concerted activity when she
violated the unlawful rule, because Tutt clearly was “en-
gage[d] in conduct that otherwise implicates the concerns
underlying Section 7 of the Act,” under the second prong
of the test set forth in Continental Group. As the Board
recently stated in Parexel International, LLC, 356 NLRB
516, 518 (2011),

The Board has long held that Section 7 “encompasses
the right of employees to ascertain what wages are paid
by their employer, as wages are a vital term and condi-
tion of employment.” 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, “probably the most critical ele-
ment in employment,” are “the grist on which concert-
ed activity feeds.” Aroostook County Regional Oph-
thalmology Center, 317 NLRB 218, 220 (1995), enfd.
in part 81 F.3d 209 (D.C. Cir. 1996); Whittaker Corp.,
289 NLRB 933, 933–934 (1988).

We find that Tutt engaged in conduct implicating Section 7
concerns by disclosing her wage rate to her fellow employ-
ees 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
Group—i.e., that Tutt’s wage-related conduct interfered
with the Respondent’s operations and that Tutt was sus-
pended and terminated for such interference—nor 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
or pay rates, and distributing memoranda to employees
threatening them with discipline for violating such rules.

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
“conduct that otherwise implicates the concerns underlying Sec. 7 of
the Act,” the Respondent failed to make the requisite showing here.
We agree with the judge that the Respondent’s proffered reasons for
acting against Tutt were pretextual.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

428
(b) Discharging or suspending employees who violate
unlawful rules by engaging in discussion of their com-
pensation or wage rates.
(c) In any like or related manner interfering with, re-
straining, 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 noti-
fy 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 posi-
tion, 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 judge’s 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic 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 “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 5,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
and/or other electronic means, if the Respondent custom-
arily 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 cov-
ered 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 em-
ployees and former employees employed by the Re-
spondent 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 certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

MEMBER HAYES, concurring.
I agree with the judge’s finding that, in the circum-
stances of this case, employee Kimberly Tutt was en-
gaged in actual protected concerted activity when dis-
cussing 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
Tutt’s conduct was not concerted, the discharge would be
unlawful under the second prong of the test in Continen-
tal Group, 357 NLRB 409 (2011).

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain any rule preventing you from
discussing your terms and conditions of employment,
including compensation or pay rates, with other employ-
ees, or distribute memoranda to you threatening you with
discipline for violating such rules.
WE WILL NOT suspend or discharge you because you
violate our unlawful rules by discussing your compensa-
tion or wage rates.
TAYLOR MADE TRANSPORTATION SERVICES

429
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind our April 20, 2011 memorandum and
any rules in our employee handbook that preclude you
from discussing your compensation or pay rates, and WE
WILL notify all of you in writing that we have done so.
WE WILL, within 14 days from the date of the Board’s
Order, offer Kimberly Tutt full reinstatement to her for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights and privileges previously enjoyed.
WE WILL make Kimberly Tutt whole for any loss of
earnings and other benefits resulting from her suspension
and discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension and discharge of Kimberly Tutt, and WE
WILL, 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.
TAYLOR MADE TRANSPORTATION SERVICES,
INC.

Patrick J. Cullen, Esq., for the Acting General Counsel.
Paul D. Shelton, Esq. and Fabian D. Walters, Esq., of Balti-
more, Maryland, for the Respondent-Employer.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This
case was tried before me on October 26, 2011, in Baltimore,
Maryland, pursuant to an amended complaint and notice of
hearing issued by the Regional Director for Region 5 of the
National Labor Relations Board (the Board). The complaint,
based upon a charge filed on May 31, 2011,1 by Kimberly Tutt
(the Charging Party or Tutt), alleges that Taylor Made Trans-
portation Services, Inc. (the Respondent or Employer), has
engaged in certain violations of Section 8(a)(1) of the National
Labor Relations Act (the Act). The Respondent filed a timely
answer to the complaint denying that they had committed any
violations of the Act.
Issues
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act by maintaining and applying overbroad and
unlawful rules in its Employee Handbook that prohibited em-
ployees from discussing their compensation and pay rates. The
Acting General Counsel argues that the Charging Party’s sus-
pension on April 25, and subsequent termination on April 29,
resulted from her violation of the Handbook rules by engaging
in protected concerted activities under the Act.

1 All dates are in 2011, unless otherwise indicated.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with an office and place of busi-
ness located in Baltimore, Maryland, has been engaged in the
business of providing passenger transportation services to the
United States Government under a contract with the Social
Security Administration. Respondent, in conducting its busi-
ness operations, has been engaged in providing services to the
United States Government valued in excess of $50,000. Re-
spondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Facts
Since on or about November 30, 2010, Respondent in its
Employee Handbook has maintained the following rule:
NON-DISCLOSURE
Such confidential information includes, but is not limited to
the following examples:

 Compensation data

Between on or about November 30, 2010, until on or about
April 22, Respondent, in its employee handbook maintained the
following rule:
PAYDAYS
All employee pay rates are confidential and should not
be disclosed verbally, written, or electronically posted for
deliberate expose [sic] of rates without a valid reason.
This could lead to disciplinary actions up to and in-
cluding termination.
Since on or about April 22, Respondent, in its Em-
ployee Handbook, has maintained the following rule:
PAYDAYS
All Taylor Made Transportation, Inc. employees are
encouraged to use good judgment regarding disclosing pay
rates, which could lead to additional expense and disrup-
tion for Taylor Made Transportation Services, Inc.

Since in or around April 2011, Respondent in its Employee
Handbook has maintained the following rule:

EMPLOYEE CONDUCT AND WORK RULES

Taylor Made Transportation Services, Inc. expects
employees to follow rules of conduct that will protect the
interests and safety of all employees and the organization.

The following are examples of infractions of rules of
conduct that may result in disciplinary action, up to and
including termination of employment:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

430
 Unauthorized disclosure of business “secrets” or con-
fidential information.

 Disclosure of confidential pay rates without validity.

On or about April 20, Respondent published the following
memorandum to its employees:

This is a reminder that all employee pay rates are confi-
dential. It is against company policy to disclose or discuss
your pay rate weather [sic] it is verbal, written, electroni-
cally communicated or by any other means, to deliberate-
ly make others aware of your hourly rate of pay without
validity.
As all of our employees are valued this would unfortu-
nately lead to disciplinary actions up to and including ter-
mination.
We ask that all Taylor Made Transportation Services,
Inc. employees adhere to this policy.

On April 25, the Respondent suspended the Charging Party
and on April 29 she was terminated.
At all material times Allen R. Taylor has been the owner,
president, and chief executive officer of the Respondent. Mar-
yce Willis serves in the position of human resources director
and James Kearney is a transportation supervisor. The Re-
spondent, in its answer, admitted that the above individuals are
supervisors and agents within the meaning of Section 2(11) and
(13) of the Act.
Respondent hired Tutt on March 1, and she worked as a part-
time driver at the Social Security Administration (SSA) princi-
pally driving SSA employees between buildings on their cam-
pus. Tutt remained in that assignment until on or about March
31, when she was transferred to the newly acquired contract site
at the Centers for Medicare and Medicaid Services (CMS)
where she provided passenger transportation services for CMS
employees under the direct supervision of Kearney.2 The trans-
fer was not disciplinary in nature but rather was to accommo-
date both Tutt and the Respondent in effectuating the new con-
tract. During the orientation training session, the CMS Super-
visor Maria Fowlkes observed Tutt and some of the other em-
ployees chatting with passengers and not exhibiting a profes-
sional demeanor. Accordingly, these observations were shared
with the Respondent and a brief meeting was held on April 1
with Tutt, Willis, Kearney, and Operations Manager Lionel
Saxon (R. Exh. 1). During the meeting, Tutt was advised to
keep a professional demeanor while representing the Respond-
ent and to watch her conduct and conversation around clients
and fellow employees.
On April 12, Willis was made aware from concerns raised by
coworkers that Tutt was discussing her rate of pay with fellow
employees. Since the only people that had access to that in-
formation was the employee, the Employer, and the client
(CMS), Willis determined that such actions were contrary to
Respondent’s policies and procedures set forth in its Employee
Handbook.

2 During the period that Kearney supervised Tutt (April 1–21), he
did not issue her any written warnings or impose discipline.
On April 20, by a memorandum to all employees that was
stapled to their paychecks, Willis reminded the work force that
all employee pay rates are confidential and it is against compa-
ny policy to disclose or discuss your pay rates with the admoni-
tion that disclosure could lead to disciplinary actions up to and
including termination (GC Exh. 4).
On April 20, Kearney cautioned Tutt on the usage of her
cell-phone and recommended that the company cell phone be
plugged into the charger instead of her personal cell phone. He
documented these issues in a memorandum to Taylor dated
April 22 (R. Exh. 2). Kearney testified that prior to April 20 he
had cautioned Tutt on at least three occasions regarding the
excessive volume of her cell phone and suggested she turn
down the call alert due to its graphic language. Kearney
acknowledged that Tutt complied with both of these requests
and he did not inform Willis or any other supervisor about these
conversations nor did he memorialize the discussions.
Tutt’s last day of work occurred on April 21, as she was
granted leave on April 22 to attend her sister’s wedding. On
April 22 Kearney met with Willis to discuss concerns about
Tutt’s performance.
On April 24 (Sunday), Tutt received a telephone call from
Willis and was instructed to come directly to her office on April
25 (Monday), rather then reporting to work.
On April 25, Willis held a meeting with Tutt regarding her
lack of professional behavior. Prior to the meeting, Willis pre-
pared an outline of talking points to be discussed during the
meeting (R. Exh. 2). During the meeting Willis reviewed
Tutt’s personal cell-phone usage pursuant to the April 22 mem-
orandum that Kearney had prepared, and also informed Tutt
that it had been brought to the attention of Taylor that employ-
ees were upset because Tutt had disclosed her rate of pay that
was higher than some of her coworkers. Willis further in-
formed Tutt that the entire management team was doing dam-
age control and all employees when hired were encouraged to
use good judgment regarding pay rates. At the conclusion of
the meeting Willis advised Tutt that effective immediately she
was under suspension until Friday, April 29, when a decision
would be made regarding the above situation and her continued
employment at the Respondent. Willis did not provide Tutt
with a copy of the talking points nor was Tutt provided a writ-
ten record of the reasons for her suspension.
On April 28 (Thursday), Willis telephoned Tutt and instruct-
ed her to be present in her office at 10 a.m. on April 29. During
this meeting, Willis informed Tutt that after a thorough review
of her employment history, it was decided that she was not a
good fit for the Employer and that the decision was made to
terminate her. According to Tutt, Willis informed her that the
reason she was being terminated was due to her discussing and
disclosing confidential pay rates with fellow employees that
caused excessive disruption in the work force and with the
client (CMS). Tutt testified that no other reasons were given
for the termination including improper cell phone usage or
Kearney’s April 22 memorandum. Tutt further testified that
toward the end of the meeting Taylor entered the office and the
subject of disclosing her pay rate to employees was discussed.
Taylor, while admitting that he came into Willis’s office at the
conclusion of the meeting, denied that he had any discussions
TAYLOR MADE TRANSPORTATION SERVICES

431
with Tutt concerning the disclosure of her pay rate or the rea-
sons for her termination. Willis testified that Tutt was suspend-
ed and subsequently terminated due to inappropriate cell phone
usage for which she was warned on several occasions, insubor-
dination and solicitation of coworkers and clients for nonwork-
related matters and lack of professional behavior. Tutt was not
provided with any written reasons for the discharge but Willis
completed a termination report that was placed in Tutt’s per-
sonnel file (R. Exh. 3). That report shows that Tutt was termi-
nated for violating policies and procedures, improper cell phone
usage, and thus was no longer needed.
Shortly, after Tutt’s termination on April 29, she filed for
unemployment insurance with the State of Maryland’s Depart-
ment of Labor, Licensing and Regulation Office of Unemploy-
ment Insurance. An initial telephone interview occurred first
with Tutt and then with Willis. Subsequently, a second tele-
phone hearing occurred with a claims examiner to obtain addi-
tional information regarding the termination in which both Tutt
and Willis participated (GC Exh. 5).3 Tutt informed the claims
examiner that the reason for her termination was the Employ-
er’s position that she had disclosed confidential pay rates to
fellow employees. On May 6, Willis on behalf of the Employ-
er, informed the claims examiner that on April 12 a number of
employees informed her of Tutt’s specific pay rate, and since
only the employee, the Employer, and the client (CMS) were
aware of such information, it was concluded that Tutt had dis-
closed her pay rate to others which was contrary to Respond-
ent’s handbook policy and was grounds for immediate dismis-
sal. Accordingly, Tutt was terminated for disclosing her com-
pensation to coworkers. Willis further informed the claims
examiner that while Tutt received a warning for violation of its
cell phone usage policy, she would not have been terminated
for that offense. On May 26, Willis also informed the claims
examiner that Tutt was discharged by her and Taylor for failure
to follow policy in disclosing her wages.
After evaluating the evidence, the Office of Unemployment
Insurance initially denied Tutt’s claim finding that she had
deliberately and willfully disregarded the standards of behavior
in disclosing the Employer’s confidential financial information,
which action is considered gross misconduct.
On appeal, a hearing examiner reversed the initial decision,
and Tutt was granted unemployment benefits that she continues
to receive (GC Exh. 6).
The 8(a)(1) Employee Handbook Allegations
The Acting General Counsel alleges that wage discussions
among employees are considered to be the core of Section 7
rights. Parexel International, LLC, 356 NLRB 516, 518
(2011). An employer’s rule which prohibits employees from
discussing their compensation is unlawful on its face. DaNite
Sign Co., 356 NLRB 975, 975 fn. 1 and 980 (2011), quoting
Freund Baking Co., 336 NLRB 847 (2001); Lutheran Heritage
Village-Livonia, 343 NLRB 646 (2004).
Based on the forgoing, I find that the Respondent has violat-
ed Section 8(a)(1) of the Act by promulgating a policy that

3 The certification of record was admitted into evidence pursuant to
Rules 803(8) and 901(7) of the Federal Rules of Evidence.
explicitly prohibits employees from discussing their compensa-
tion.
Since the Respondent’s confidentiality provisions contained
in its employee handbook explicitly restricts employees from
discussing their compensation including pay rates it restricts
Section 7 activity and would likely have a chilling effect on
those rights such that the mere maintenance of those provisions
violates Section 8(a)(1) of the Act even in the absence of en-
forcement.
Lastly, I also find that the Respondent violated Section
8(a)(1) of he Act when, on April 20, it published the memoran-
dum set forth above that reminded employees that pay rates are
confidential and if they discussed or disclosed that information
it could lead to disciplinary action up to and including termina-
tion. Therefore, it follows that the overbroad confidentiality
provision has been applied to restrict the exercise of Section 7
rights, and is unlawful in violation of the Act.
The 8(a)(1) Suspension and Termination Allegations
The Acting General Counsel alleges in paragraphs 10 and 11
of the complaint that the Respondent suspended and terminated
the Charging Party because she violated the employee hand-
book rules by engaging in protected concerted activities.
The Employer defends its conduct by asserting that the em-
ployee handbook rules were not relied on when it suspended
and thereafter terminated Tutt. Rather, they argue that Tutt was
terminated during her probationary period due to poor perfor-
mance, lack of professional behavior, and for violating the Re-
spondent’s policy regarding the usage of personal cell phones.
Discussion
The Board has held in Double Eagle Hotel & Casino, 341
NLRB 112 fn. 3 (2004), enfd. 414 F.3d 1249 (10th Cir. 2005),
cert. denied 546 U.S. 1170 (2006), that discipline imposed pur-
suant to an unlawfully overbroad rule violates the Act in those
situations in which an employee violated the rule by (1) engag-
ing in protected conduct or (2) engaging in conduct that other-
wise implicates the concerns underlying Section 7 of the Act.
Nevertheless, an employer will avoid liability for discipline
imposed pursuant to an overbroad rule if it can establish that
the employee’s conduct actually interfered with the employee’s
own work or that of other employees or otherwise actually
interfered with the employer’s operations and that the interfer-
ence rather than the violation of the rules, was the reason for
the discipline. It is the employer’s burden, not only to assert
this affirmative defense as was done in the subject case, but
also to establish that the employee’s interference with produc-
tion or operations was the actual reason for the discipline. Con-
tinental Group, Inc. 357 NLRB 409 (2011).
The Board has also held in Automatic Screw Products Co.,
306 NLRB 1072 (1992), that an employer violates Section
8(a)(1) of the Act by promulgating and maintaining a rule pro-
hibiting employees from discussing their salaries and also by
disciplining an employee for violating that rule.
The protected nature of Tutt’s and other employee’s efforts
to protest Respondent’s actions concerning the confidential
nature of compensation and pay rates has long been recognized
by the Board who has held that similar conduct comes within
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

432
the guarantees of Section 7 of the Act. See Joseph De Rairo,
DMD, P.A., 283 NLRB 592 (1987). The Board has also held in
Mike Yurosek & Sons, Inc., 306 NLRB 1037, 1038 (1992), that
“individual action is concerted where the evidence supports a
finding that the concerns expressed by the individual are [sic]
logical outgrowth of the concerns expressed by the group.” In
this case, I find that Tutt’s discussions, on her own and the
employees’ behalf, about their compensation fall within the
ambit of protected concerted activity. However, it must be
determined whether Tutt was suspended and thereafter termi-
nated based on such activity.
In Wright Line, 251 NLRB 1083 (1980), enfd, 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the in-
ference that protected conduct was a “motivating factor” in the
employer decision. On such a showing, the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The United
States Supreme Court approved and adopted the Board’s
Wright Line test in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1993). In Manno Electric, 321
NLRB 278 fn. 12 (1996), the Board restated the test as follows.
The General Counsel has the burden to persuade that antiunion
sentiment was a substantial or motivating factor in the chal-
lenged employer decision. The burden of persuasion then shifts
to the employer to prove its affirmative defense that it would
have taken the same action even if the employee had not en-
gaged in protected activity.
I find that the Acting General Counsel sustained his initial
burden of showing that Tutt’s protected activity was a motivat-
ing factor in the decision to suspend and thereafter terminate
her. In this regard, Tutt engaged in protected activity by dis-
closing and discussing with fellow employees her compensa-
tion and pay rate, the Employer was aware of this activity, and
animus against such activity was exhibited by the Employer.
Moreover, the timing of Tutt’s suspension and termination
demonstrates animus by Taylor and Willis. Indeed, upon learn-
ing on April 12 that Tutt had disclosed her pay rate to fellow
employees, they both engaged in extensive damage control to
placate employees and the client whose contract comprised
approximately 50 percent of the Respondent’s yearly revenue.
I further find that the Respondent has not met its rebuttal
burden under Wright Line, of showing that it would have dis-
charged Tutt even in the absence of her protected activity.
Notably, the test applies regardless of whether the case involves
pretextual reasons or dual motivation. Frank Black Mechanical
Services, 271 NLRB 1302 fn. 2 (1984). The Board has held
that a finding of pretext necessarily means that the reasons
advanced by the employer either did not exist or were not, in
fact relied on, thereby leaving intact the inference of wrongful
motive. Limestone Apparel Corp., 255 NLRB 722 (1981),
enfd. 705 F.2d 799 (6th Cir. 1982). In short, a finding of pre-
text defeats any attempt by the employer to show that it would
have discharged the discriminatee absent his or her protected
conduct. Golden State Foods Corp., 340 NLRB 382 (2003).
I conclude that it was not until after May 31 when the subject
of unfair labor practice charge was filed, that the Respondent
first raised its present defense and argued that Tutt was sus-
pended and subsequently terminated during her probationary
period due to poor work performance, lack of professional be-
havior, and for violating its policy regarding the use of personal
cell phones. That defense conflicts with the reasons provided
to Tutt in her suspension and termination meetings prior to the
filing of the subject charge. When an employer provides shift-
ing reasons for discharging an employee, the Board has found
that the proffered reasons are pretextual and the true reason is
animus. Seminole Fire Protection, Inc., 306 NLRB 590 (1992).
In this regard, it is no coincidence, that shortly after Willis and
Taylor learned on April 12 that Tutt had disclosed confidential
financial information, a memorandum was issued on April 20
to all employees that disclosing confidential information could
subject them to disciplinary actions up to and including termi-
nation. Likewise, the evidence establishes that in the suspen-
sion meeting of April 25, Willis informed Tutt that her co-
workers informed Taylor that they were upset because Tutt’s
rate of pay was higher than theirs. I note that Willis’s April 25
talking points reference Tutt’s disclosure of confidential finan-
cial information.4 Additionally, I credit Tutt’s testimony that
during the termination meeting on April 29, both Willis and
Taylor addressed the issue of disclosing confidential financial
information that was contrary to the Respondent’s policy and
was grounds for termination. Indeed, Tutt’s termination report
relies on a violation of Respondent’s policies and procedures as
a reason for her termination.
Lastly and particularly relying upon the admissions against
interest made by Willis during the unemployment insurance
hearing (GC Exh. 5), I find that the Respondent terminated Tutt
for disclosing confidential financial information in violation of
its Employee Handbook policy. I also note that Willis conced-
ed that while Tutt received a warning for inappropriate cell-
phone usage, she would not have been terminated for that of-
fense and she worked to the best of her ability.
In summary, I find that Tutt was terminated for engaging in
protected concerted activity based on Respondent’s overbroad
Employee Handbook rules that precluded employees from dis-
cussing or disclosing their compensation or pay rates. Accord-
ingly, such action violates Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. By maintaining in its employee handbook provisions that
preclude employees from discussing their compensation or pay
rates, the Respondent violated Section 8(a)(1) of the Act. It
further violated the Act by applying its Handbook rules and
issuing a memorandum on April 20, 2011, to employees that
restricted the exercise of Section 7 rights and threatened disci-
pline if employees discussed or disclosed their compensation or
pay rates among themselves or with other employees.

4 I also note that the majority of the reasons advanced by Willis in
her testimony for Tutt’s suspension and termination do not appear in
her April 25 talking points (R. Exh. 2).
TAYLOR MADE TRANSPORTATION SERVICES

433
3. By suspending and discharging employee Kimberly Tutt
the Respondent has been interfering with, restraining, or coerc-
ing employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act in violation of Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, I shall order them to cease and desist and to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
Specifically, having found that the Respondent violated Sec-
tion 8(a)(1) of the Act by maintaining overbroad handbook
rules that preclude employees from discussing their compensa-
tion and pay rates, I shall order the Respondent to rescind those
provisions and to notify its employees in writing, that it has
done so. Hyundai America Shipping Agency, 357 NLRB 860
(2011). Additionally, having found that the Respondent further
violated Section 8(a)(1) of the Act by suspending and discharg-
ing Kimberly Tutt, I shall order the Respondent to offer her full
reinstatement to her former job or, if that job no longer exists,
to a substantially equivalent job, without prejudice to her sen-
iority or any other rights or privileges previously enjoyed.
Further, the Respondent shall make the aforementioned em-
ployee whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against her. Backpay
shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010),
enf. denied on other grounds sub nom. Jackson Hospital Corp.
v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
The Respondent shall also be required to expunge from its
files any and all references to the unlawful suspension and dis-
charge of Kimberly Tutt and to 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.
[Recommended Order omitted from publication.]