Asheville School, Incorporated

National Labor Relations Board - Board Decisions

Aug 8, 2006

347 N.L.R.B. 877 (N.L.R.B. 2006)

ASHEVILLE SCHOOL, INC.
347 NLRB No. 84
877
Asheville School, Incorporated and Carolyn Kelley.
Case 11–CA–20447
August 8, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND KIRSANOW
On July 8, 2005, Administrative Law Judge George
Carson II issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs.1
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 exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions,
and to adopt the recommended Order as modified. 3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ashe-
ville School Incorporated, Asheville, North Carolina, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
“(a) Within 14 days after service by the Region, post at
its facility in Asheville, North Carolina, copies of the

1 By order dated December 27, 2005, the Board denied the Respon-
dent’s Motion Requesting the Untimely filing of Respondent’s Answer-
ing Brief (Member Schaumber concurring and Chairman Battista dis-
senting).
2 In adopting the judge’s finding that the Respondent’s discharge of
Charging Party Kelley did not violate Sec. 8 (a) (1), we find it unneces-
sary to pass on whether Kelley’s conversations with other employees
were concerted under Sec. 7. We find, however, in agreement with the
judge, that under the circumstances presented here, Kelley’s disclosure
of confidential wage and salary information was not protected. In
balancing the Respondent’s interest in confidentiality with Kelley’s
interest in disclosure, we note that the record establishes that Kelley, as
the Respondent’s payroll accountant, possessed special custody of
wage and salary personnel records on the Respondent’s behalf, that the
Respondent treated the information in these records as confidential, and
that Kelley was aware that her established job duties, which she
breached, required that she maintain the confidentiality of this informa-
tion. See Clinton Corn Processing Co., 253 NLRB 622, 623–625
(1980) (discharge of payroll clerk lawful where she disclosed confiden-
tial wage and salary information); see also Cook County College
Teachers Local 1600, 331 NLRB 118, 120 (2000); International Busi-
ness Machines Corp., 265 NLRB 638 (1982). Although the Respondent
maintained an unlawful policy prohibiting among employees the dis-
cussion of their own wages, the record fails to demonstrate a nexus
between that prohibition and Kelley’s disclosure of confidential infor-
mation within her special custody. In these circumstances, we find that
the Respondent’s discharge of Kelley did not violate the Act.
3 We shall modify paragraph 2(a) of the recommended Order to con-
form to our customary practice pertaining to the posting of the notice.
We shall also substitute a new notice for that of the judge.
attached notice marked “Appendix.”3 Copies of the
notice, on forms provided by the Regional Director for
Region 11, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency
of these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, 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 February 13, 2004.”
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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
violated Federal labor law and had ordered us to post and
obey 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
benefit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT promulgate or maintain any prohibi-
tion upon your discussing your wages.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights set forth above.
ASHEVILLE SCHOOL INCORPORATED
Shannon R. Meares and Lisa Shearin, Esqs., for the General
Counsel.
George Ward Hendon and Matthew S. Roberson, Esqs., for
the Respondent.
Glen C. Shults Jr., Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Asheville, North Carolina, on May 16, 2005,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD878
pursuant to an amended complaint that issued on February 28,
2005.1 The amended complaint, as further amended at the
hearing, alleges that the Respondent violated Section 8(a)(1) of
the National Labor Relations Act by maintaining and enforcing
a rule prohibiting employees from discussing wages, threaten-
ing to terminate employees for discussing wages, and discharg-
ing Charging Party Carolyn Kelley for engaging in protected
concerted activity. The Respondent denies all violations of the
Act. I find that the maintenance of the rule did violate the Act.
I find no evidence establishing an unlawful threat or that the
termination of the Charging Party related to protected concerted
activity and shall recommend that those allegations be dis-
missed.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Asheville School, Incorporated (the
School), is a North Carolina corporation engaged in the opera-
tion of an educational institution in Asheville, North Carolina.
The School annually receives gross revenues in excess of one
million dollars and purchases and receives goods and materials
valued in excess of $50,000 directly from points located outside
the State of North Carolina. The School admits, and I find and
conclude, 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
The School employs 85 individuals. Executives and faculty,
a total of 61 employees, are salaried. The remaining 24 em-
ployees, including clerical, maintenance, and part-time employ-
ees, are paid hourly. Faculty members and executives are em-
ployed pursuant to individual annual contracts signed by the
head of school and the employee. In years past, the document
offering employment signed by the head of school and pre-
sented to the salaried employee for acceptance has contained
the following sentence: “Your compensation is a matter of the
strictest confidence and concern only to you and to me.”
Glenn Mayes, assistant head of school for operations and
chief financial officer, testified that, upon the advice of counsel,
the School sent to all salaried personnel a letter deleting the
foregoing sentence from their respective employment contracts.
The letter deleting the sentence from Mayes’ contract is dated
May 2, 2005. Hourly employees do not have contracts, thus
they have never been subject to the foregoing formal prohibi-
tion. Mayes acknowledged that, even though not subject to the
foregoing formal prohibition, the School “had the expectation”
that they would keep their wages confidential. Receptionist
Carolyn (Charli) Cagle recalled that she was told this when she
was hired. Mayes admitted that the rescission of the confiden-
tiality requirement has not been communicated to hourly em-
ployees.

1 All dates are in 2004 unless otherwise indicated. The charge was
filed on August 13, and was amended on November 22.
The Charging Party, Carolyn Kelley, began working at the
School in June 1992, and worked there until March 15. She
was the accountant and her duties included student accounts,
loans, and payroll. She was the only employee who had
access to the payroll information of each employee and was
aware of, or could discover, the pay rate of each employee.
Wage increases generally occurred annually, and Kelley
received a hand-delivered document from Chief Financial
Officer Mayes reflecting the amount of each employee’s
wage increase which she then entered into the payroll com-
puter program. Her password was required to access that
program which contained the wage rate of each employee.
Mayes would use Kelley’s password if for any reason he
needed to access the payroll program. Kelley prepared the
biweekly hourly payroll from timecards submitted to her by
the hourly employees. The timecards reflected the regular
and overtime hours worked by the employees. They did not
contain the wage rate. Employees placed their timecards in a
tray in Kelley’s office labeled “payroll information.” They
remained there until Kelley tabulated them. As hereinafter
discussed, Kelley divulged information relating to the man-
ner in which one employee was being paid overtime and a
wage increase given to a former executive. The complaint
alleges, and the General Counsel and Respondent argue, that
Kelley was terminated for engaging in protected concerted
activity. The Respondent contends that she divulged confi-
dential information of which she was aware by virtue of her
position of accountant, that she did not engage in concerted
activity, and that she was discharged for cause.
B. Facts
Carolyn Kelley worked in the school business office, a
cluster of offices located behind the desk of receptionist
Charli Cagle. Kelley shared an office with Janet Marshall
who was responsible for accounts payable. Adjacent to their
office was the office of Comptroller Helen Rouse, a salaried
employee whose office was also adjacent to that of Chief
Financial Officer Mayes. The record does not reflect to
whom Cagle reported. Marshall reported to Rouse. Ac-
countant Kelley and Comptroller Rouse reported directly to
Mayes.
In late December 2003 or early January 2004, Kelley
spoke with Mayes regarding the overtime of Linda Alford, a
part-time employee who worked as a research assistant.
Alford’s timecard claimed overtime for hours worked in
excess of 24. Kelley testified that she asked Mayes whether
Alford could be paid overtime “if she doesn’t work over 40
hours,” and that Mayes replied, “I can pay her anything I
want to.” Mayes recalls that he explained that the School
had to pay overtime for hours in excess of 40, “but we could
do it for anything under 40, and so we could make that ar-
rangement” with Alford. The arrangement for Alford, as
explained by Mayes at the hearing, occurred because Al-
ford’s supervisor needed her to work additional hours. Al-
ford requested more compensation, but Chief Financial Offi-
cer Mayes wanted her base pay to be the same when she
resumed her regular schedule. He investigated and found
that, legally, the School could pay overtime for hours in ex-
ASHEVILLE SCHOOL 879
cess of Alford’s normal 24-hour schedule. Although Mayes
explained the foregoing rationale underlying the payment of
overtime to Alford at the hearing, he did not assert that he gave
that full explanation to Kelley when she raised the question
regarding Alford’s overtime.
In late January, a few weeks after Kelley’s conversation with
Mayes, employee Janet Marshall recalls that Kelley stated Al-
ford’s name and complained to her that “if she [referring to
Alford] worked more than 20, I think it was 20 hours that she
was suppose[d] to work, if she worked more than that, that she
was paid time and a half and that wasn’t right.” Marshall re-
called that Kelley also informed her that she had told Mayes
that she did not think that was right but Mayes said “that he
could do whatever he wanted to do.”
Kelley admits the substance of the foregoing conversation
but denies stating Alford’s name. She recalled that the conver-
sation occurred when Marshall neglected to sign her timecard.
Kelley gave her the card to sign and Marshall, while signing the
card, stated that she thought it was unfair that she lost overtime
when inclement winter weather prevented her from getting to
work. Kelley initially testified that she responded, “Well, if
you think it’s not fair, since we’re griping, I think it’s not fair
for a part-time person to work 23 or 24 hours a week and get
paid time and a half for any amount of overtime that they put
on their card.” She then elaborated, explaining that if the part-
time person “worked 23 hours at a rate of $12 an hour and then
they had 36 hours overtime, that they would be making more
than I’m making and I’m a full time employee.” The record
does not reveal Alford’s rate of pay, and Kelley denied that it
actually was $12, explaining that she used that figure as a “for
instance.” On cross-examination, Kelley testified that she said,
“Well, while we’re griping, then I don’t think it’s fair that
Linda Alford makes overtime when you and I work 40 hours a
week.” Immediately after giving the foregoing testimony, Kel-
ley argued with counsel that he had put words in her mouth,
that she did not mention Alford’s name. I credit Marshall and
Kelley’s spontaneous testimony on cross-examination.
Kelley denied mentioning anything about Alford’s overtime
arrangement to receptionist Charli Cagle. Cagle disputes this,
testifying to two occasions in which Kelley expressed that she
though the overtime arrangement with Alford was unfair. She
testified that, on one of the occasions, Kelley attempted to show
her Alford’s timecard saying, “Here, look at this.” Cagle re-
sponded that she did not want to. Kelley then complained that
Mayes had told her that “any arrangements between the School
and the employee they could do.” Whether the foregoing con-
versation, which Kelley denied, occurred is immaterial in view
of her admitted conversation with Marshall.
On January 29, Head of School Archibald Montgomery held
an employee meeting in which he announced that the School
would be unable to give raises to its hourly employees. At a
similar meeting several years ago, the former head of school,
Billy Peebles, then referred to as the headmaster, had an-
nounced that no raises would be given to any employees. Af-
terwards, Accountant Kelley, in the course of her payroll du-
ties, learned that Headmaster Peebles and his wife each re-
ceived a pay increase. Mayes, in testimony, explained that,
although the Board of Trustees had approved a raise for Head-
master Peebles and his wife, they had initially refused it.
They accepted it in September of that prior year when en-
rollment figures exceeded projected goals. Only Kelley,
Mayes, and the Board of Trustees had knowledge of that
fact.
As the employees were leaving the January 29 meeting,
Marshall, who had previously complained that she needed a
raise and was aware that employee Charli Cagle had made a
similar complaint, stated to Mayes, “Oh, so that means that
we’re not going to get a raise.” Mayes answered, “This isn’t
pertaining to you and Charli. I have something else that I’m
trying to work out for the two of you.”
Shortly after the January 29 meeting, Carolyn Kelley
spoke with Marshall, stating that there had been “a meeting
like this once before” in which former Headmaster Peebles
had announced that no one would get raises, but that, after
that, “he gave himself a five percent increase and he gave
that to his wife also.” According to Marshall, Kelley cau-
tioned Marshall, “Don’t tell anybody, only Glenn [Mayes]
and I know about it.”
Kelley admits the substance of the foregoing conversation.
She recalls telling Marshall “how much different the School
is now than what it was when Mr. Peebles was the Headmas-
ter.” She acknowledged that she kept talking and informed
Marshall that 1 year the employees did not get a raise but
“the Trustees chose to give Mr. Peebles and his wife a raise.”
She denied cautioning Marshall not to mention this informa-
tion. I credit Marshall.
The School first heard allegations that Kelley had di-
vulged the foregoing information on March 5, when Marshall
and Cagle spoke with Mayes regarding a different matter.
Marshall and Cagle were accused by Kelley of somehow
being responsible for the termination of her cousin by the
contractor that provided food service to the School. They
complained to Mayes about Kelley’s accusation. The record
is unclear regarding the basis for Kelley’s accusation. Kelley
was not recalled as a witness to deny that she made the accu-
sation.
Marshall and Cagle met with Mayes and expressed their
concern regarding what they deemed to be an unjust accusa-
tion. Mayes assured them that he was aware of the circum-
stances regarding the termination of the subcontractor’s em-
ployee, Kelley’s cousin, and that they need not be concerned.
Marshall “blurted out” that “quite frankly, I’ve had enough
of Carolyn’s [Kelley’s] mouth.” In the ensuing conversation,
Marshall and Cagle informed Mayes of other statements
made by Kelley including general references to the Alford
and Peebles situations. Mayes requested that they give de-
tailed written statements regarding any confidential informa-
tion that Kelley had divulged, and they did so. Cagle’s
statement is dated March 5, and refers to “our conversation
this morning.” Marshall’s statement is dated March 8.
Upon receipt of the statements from Cagle and Marshall,
Mayes met with Head of School Archibald Montgomery.
They decided to terminate Kelley because she had “shared
confidential payroll information and had violated the trust of
her position.” Although the statements of Marshall and
Cagle included references to other statements by Kelley,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD880
Mayes testified that the two specific grounds for the termina-
tion related to her divulging the overtime arrangement with
Alford, paying overtime for hours worked in excess of 24, and
the disclosure of the raise received by the former Headmaster.
Mayes decided to wait until March 15, to terminate Kelley
because the upcoming weekend of March 13 and 14 was par-
ents weekend.
On March 15, at the end of the day, Mayes called Kelley to
his office and informed her that she was terminated. He recalls
being seated and referring to notes that reflect that he informed
her that he was “saddened” to have to have the conversation but
that he had statements from “colleagues” that she had shared
payroll information with them and that this constituted a breach
of trust and that she was terminated. Kelley recalled that
Mayes was standing in front of his desk and began the meeting
by stating “You’re fired.” She recalls asking what she was
being fired for and that Mayes answered, “For disclosing confi-
dential pay information with Janet Marshall.” Kelley did not
deny the accusation. She recalls answering, “If Janet [Mar-
shall] said that, I said that.” She then requested that Mayes not
tell people that she was fired, that she would prefer it if he told
people that she had retired.
The accountant duties formerly performed by Kelley were
distributed between Comptroller Rouse and Marshall. Rouse
assumed the payroll duties. Marshall, in addition to accounts
receivable, began handling student accounts. Counsel for the
General Counsel, when examining Mayes under Rule 611(c) of
the Federal Rules of Evidence, assumed that Cagle had also
taken over some of Kelley’s duties and questioned Mayes as
follows:
Q. Now that Ms. Rouse, Ms. Marshall, and Ms. Cagle
have assumed the duties associated with Mrs. Kelley’s
former position as accountant, you’ve talked to them about
the importance of keeping information confidential?
A. I have, yes.
Q. And they’ve acknowledged the fact that they’re
suppose[d] to keep information confidential?
A. They have.
Q. You’ve also warned them that sharing wage infor-
mation is grounds for termination?
A. Correct.
On direct examination, Kelley was asked, “Did you ever dis-
cuss confidentiality in your evaluation meetings?” Kelley an-
swered, “No, I did not.” On cross-examination Kelley was
referred to her evaluation dated June 18, 2002, in which she had
stated a concern that “staff members to be equal in opportuni-
ties and rewards.” Counsel for the Respondent asked Kelley
whether, in response to that concern, Mayes did not mention
“the necessity of your confidentiality in not sharing the pay of
others that you learned while you were payroll clerk.” Kelley
answered, “He did, but I have never given dollar amounts about
anyone’s pay. I have never revealed what anyone has made.”
In an undated letter that she sent to Mayes following her
termination, Kelley sets out various incidents involving other
employees and states, “I just want you to know that I am not
the only one who tells things they should not.”
Kelley testified that she “never discussed what anyone
made.” When asked whether it “was okay to discuss the
raises or the rates,” Kelley answered, “Well, I think that any-
one has . . . the right to gripe if they want to. . . . And
that’s what I was doing.” At no time did Kelley assert that
she sought to have Marshall, Cagle, or any other employee
join her in protesting the manner in which Chief Financial
Officer Mayes had determined to pay Alford. Neither Mar-
shall nor Cagle testified to any such solicitation. Kelley was
“griping” when she informed Marshall of the manner in
which Alford was being paid.
Consistent with the absence of any claim by Kelley that
she sought to have Marshall engage in any action with her
regarding the manner in which the Respondent had decided
to pay Alford, Mayes credibly testified that he was unaware
“of any purpose or concert or activity of Mrs. Kelley . . .
other than just griping” about the Alford overtime arrange-
ment. She never reapproached him regarding his direction to
pay Alford overtime for hours in excess of 24.
C. Analysis and Concluding Findings
The complaint alleges that the provision in the contract of
all salaried employees providing that “[y]our compensation
is a matter of the strictest confidence and concern only to you
and to me” constituted maintenance and enforcement of a
rule prohibiting employees from discussing wages. As held
by the Board in Automatic Screw Products Co., 306 NLRB
1072 (1992), “promulgating and maintaining a rule prohibit-
ing employees for discussing their salaries—an inherently
concerted activity clearly protected by Section 7 of the
Act”—violates Section 8(a)(1) of the Act. Although the
Respondent has advised its salaried employees that the of-
fending provision should be stricken from their current con-
tracts and has represented that the prohibition no longer ex-
ists, the rescission of the prohibition has not been communi-
cated to hourly employees. I find that the past maintenance
of this confidentiality provision in the contracts of salaried
employees and the unwritten expectation, verbally stated to
Charli Cagle, that hourly employees would also keep their
wage rate confidential violated the Act.
Counsel for the General Counsel moved to amend the
complaint at the hearing following the examination of Mayes
pursuant to Section 611(c) of the Federal Rules of Evidence
to allege: On or about March or April 2004, Respondent
warned employees that sharing wage information could re-
sult in termination. I initially reserved ruling upon the
amendment and questioned whether counsel had heard
“something that I don’t think I heard.” To assure a full re-
cord, I later allowed the amendment. The transcript reflects
that the amendment was proffered on the basis of Mayes’
response to questions that related to his communications with
current employees regarding their assumption of Kelley’s
former duties. Counsel did not change the context when she
asked Mayes whether he warned them that “sharing wage
information” would be grounds for termination. In context,
Mayes’ answer establishes that he warned the employees not
to divulge wage information of which they became aware in
the performance of Kelley’s former job duties. The General
Counsel’s question named Cagle, Marshall, and Rouse as
ASHEVILLE SCHOOL 881
having assumed Kelley’s former job duties, but the record does
not establish that Cagle assumed any of Kelley’s job duties.
Although Cagle recalls that she was informed that her wage
rate was confidential, she specifically denied that she was
threatened in that regard at any time. Marshall testified that it
was her understanding that payroll information is confidential,
“not . . . like whether I talk about my pay, but talking about
other people’s pay to people that are not that person.” Mayes
cautioned the employees who were assuming Kelley’s job du-
ties not to divulge the information that they learned when per-
forming those duties which, in addition to wage information,
included student accounts and loans. The probative evidence
does not establish that the Respondent threatened any employee
with termination for “sharing wage information.” I shall rec-
ommend that the amended allegation be dismissed.
The complaint alleges that the Respondent discharged Caro-
lyn Kelley on March 15, because she engaged in protected con-
certed activity. Kelley’s actions were neither protected nor
concerted.
Kelley was not discharged for violating the Respondent’s
prohibition upon employees sharing their wage information.
She did not discuss her own wages, a protected activity. She
was discharged for divulging information relating to other em-
ployees of which she was aware by virtue of her position as
accountant. The General Counsel argues that there is “no evi-
dence that Respondent instructed Kelley to maintain the confi-
dentiality of payroll” and, referring to Kelley’s initial testi-
mony, asserts that “she never received written or verbal instruc-
tion to keep wage information confidential.” The foregoing
argument omits Kelley’s admission on cross-examination that
Mayes informed her of “the necessity of . . . confidentiality in
not sharing the pay of others” that she learned in her capacity as
the accountant responsible for payroll. Kelley was aware that
sharing the fact that the former headmaster and his wife had
received raises when all other employees believed that no raises
were being given was confidential. She told Marshall not to
reveal that information. Although testifying that she never
revealed an actual wage rate, Kelley cited a $12 an hour wage
rate when disclosing that Alford was being paid overtime for
hours worked in excess of 24. Accepting her assertion that the
figure was a “for instance,” there is no evidence that Marshall
was aware of that fact. The $12 an hour base rate that Kelley
stated was the predicate for her assertion that, with overtime,
Alford could be earning more than she was. The disclosure of
Alford’s overtime arrangement related to Alford’s pay. The
General Counsel points out that timecards were maintained in a
tray in Kelley’s office until tabulated and were accessible to a
curious employee. Thus, the General Counsel argues, an in-
quisitive employee could ascertain that Alford was claiming
overtime for hours in excess of 24. The fact that an employee
could have discovered that Alford was claiming overtime for
hours in excess of 24 does not establish that the Respondent
was paying her for that claimed overtime. The fact of payment
was known only to Kelley, Mayes, Alford, and, presumably,
Alford’s supervisor. Kelley’s posttermination statement that
she was “not the only one who tells things they should not”
confirms that she was aware that divulging information of
which she was aware by virtue of her position as accountant
was not proper. The Respondent considered the foregoing
information to be confidential. Kelley knew it was confiden-
tial. Kelley’s divulging confidential information was not
protected. Cook County College Teachers Union Local
1600, 331 NLRB 118, 120 (2000).
Kelley did not seek to enlist the support of any other em-
ployee regarding any action relating to wages, hours, or
working conditions. The General Counsel and Charging
Party cite multiple cases holding that employee discussions
regarding wages are protected insofar as such discussions
can become the predicate for group action. Those cases are
inapposite. Kelley had no agenda for group action. Unlike
L. G. Williams Oil Co., 285 NLRB 418 (1987), cited by the
General Counsel, Kelley was aware that the information she
was divulging was confidential. Unlike the discriminatee in
L. G. Williams Oil Co., Kelley did not “pursue her protest . . .
as a matter of principle . . . .” Id. at 423. The assertions in
the briefs of the General Counsel and the Charging Party that
Kelley’s conversations were a predicate for group action are
belied by Kelley’s admission that she believed that she had
the right to gripe and “[t]hat’s what I was doing.” She did
not approach management on behalf of herself or any other
employees with regard to the manner in which Alford was
being paid. Confirmation that Kelley was just “griping” is
established by her testimony that she did this on one occa-
sion when speaking with Marshall. She did not state that she
intended to take any action, nor did she suggest or request
that Marshall to do anything. According to her testimony,
she griped about it on that one occasion. Whether she also
twice mentioned Alford’s overtime arrangement to Charli
Cagle is immaterial since she denies doing so and does not
claim to have solicited Cagle to engage in any concerted
action.
In Diva, Ltd., 325 NLRB 822 (1998), the Board adopted
the decision of the administrative law judge in which the
judge set out the following summary of precedent:
Since Meyers [Meyers Industries (Meyers I), 268 NLRB
493 (1984), and Meyers Industries (Meyers II), 281 NLRB
882 (1986),] the Board has found an individual employee’s
activities to be concerted when they grew out of prior
group activity; when the employee acts, formally or infor-
mally, on behalf of the group; or when an individual em-
ployee solicits other employees to engage in group action,
even where such solicitations are rejected. However, the
Board has long held that, for conversations between em-
ployees to be found protected concerted activity, they must
look toward group action and that mere “griping” is not
protected. See Mushroom Transportation Co. v. NLRB,
330 F.2d 683 (3rd Cir. 1964), and its progeny. Id at 830.
[Footnotes omitted.]
Kelley was not looking toward group action. She di-
vulged the raises of the former headmaster and his wife when
reminiscing about “how much different the School is now
than what it was when Mr. Peebles was the Headmaster.”
She divulged the manner in which the Respondent was pay-
ing Alford for overtime and stating a wage rate that so far as
Marshall knew was Alford’s actual rate, with the predicate,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD882
“as long as we’re griping.” There is no evidence that Kelley
was “look[ing] toward group action” or seeking to act in con-
cert with any other employees relating to any term or condition
of employment. The Respondent was unaware “of any purpose
or concert or activity of Mrs. Kelley” other than “griping.”
I am mindful, as noted in the briefs of the General Counsel
and Charging Party that Kelley was a long-term employee with
no prior discipline. Although the summary discharge of this
long-term employee was harsh, she admitted divulging infor-
mation that she was aware the Respondent considered to be
confidential. The Respondent chose to discharge her for her
indiscreet disclosures of confidential information rather than
impose a less severe punishment. There is no evidence that the
Respondent’s action was motivated by any reason other than
her breach of trust in disclosing confidential information. Kel-
ley admitted the conduct upon which the Respondent based its
action at the hearing and, at the time of her termination, she
acknowledged, “If Janet [Marshall] said that, I said that.” Kel-
ley did not seek to have any employees join with her in any
concerted action. She never reapproached Mayes regarding
Alford’s overtime arrangement. She simply griped about it.
There is no evidence that the activity in which Kelley engaged
was concerted, nor is there any evidence that the Respondent
believed, or had any reason to believe, that she was engaged in
concerted activity. I shall recommend that the allegation that
Kelley was discharged for engaging in protected concerted
activity be dismissed.
CONCLUSION OF LAW
By promulgating and maintaining a prohibition upon discus-
sion among employees of their wages, the Respondent has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent promulgated and main-
tained a prohibition upon discussion among employees of their
wages, I find that it must be ordered to cease and desist and
post an appropriate notice. Because the formal statement of
that prohibition in the contracts of salaried employees has been
rescinded, an affirmative order is unnecessary.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
ORDER
The Respondent, Asheville School, Incorporated, Ashe-
ville, North Carolina, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining a prohibition upon dis-
cussion among employees of their wages.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
facility at Asheville, North Carolina, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 11, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these proceed-
ings, 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 February 13, 2004.
(b) Within 21 days after service by the Region, file with
the Regional Director 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.
IT IS FURTHER ORDERED that the complaint is dismissed in-
sofar as it alleges violations of the Act not specifically found.

Order shall, as provided in Sec. 102.48 of the Rules, be adopted by
the Board and all objections to them shall be deemed waived for all
purposes.
3 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
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.”