Matrix Equities, Inc.

National Labor Relations Board - Board Decisions

May 15, 2017

365 NLRB No. 69 (N.L.R.B. 2017)

365 NLRB No. 69
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Matrix Equities, Inc. and Brian Burns. Case 29–CA–
168345
May 15, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On July 12, 2016, Administrative Law Judge Raymond
P. Green issued the attached decision. The General
Counsel filed exceptions and a supporting brief. The
Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the recommended
Order dismissing the complaint.1
The issue before the Board is whether the Respondent
unlawfully discharged Charging Party Brian Burns in an
attempt to suppress future protected concerted activity.
For the reasons discussed below, we find that the facts of
this case warrant a finding that it did not. We therefore
adopt the judge’s conclusion that the Respondent did not
violate Section 8(a)(1) by discharging Burns.
I. BACKGROUND
The Respondent provides real estate services and has
its headquarters in Port Jefferson Station, New York,
where about 25 people are engaged in executive or ad-
ministrative functions. At all times material, Kathryn
Puma was the office manager of the Port Jefferson Sta-
tion location and oversaw the human resources depart-
ment.2 In July 2015,3 the Respondent began searching
for a replacement for its human resource specialist, who

1 The General Counsel has implicitly excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
We have corrected several inadvertent typographical errors in the
judge’s decision, which had no impact on our disposition of the case.
2 The Respondent admits Puma was a supervisor pursuant to Sec.
2(11) and its agent pursuant to Sec. 2(13).
The General Counsel excepts to the judge’s finding that the Re-
spondent had a two-person human resources department, but does not
state, either in its exceptions or supporting brief, any grounds on which
this purportedly erroneous finding should be overturned. Therefore, in
accordance with Sec. 102.46(b)(2) of the Board’s Rules and Regula-
tions, we shall disregard this exception.
3 All dates herein are to 2015 unless otherwise noted.
was leaving the company in August. To fill the expected
vacancy, the Respondent placed a job advertisement for a
human resources assistant. The advertisement stated that
the Respondent sought “an ambitious HR professional to
assist in the overall operations of the HR department . . .
who is willing to go above and beyond in the best inter-
est of the company.” It listed a number of preferred
skills and abilities, including familiarity with employ-
ment laws and human resources topics, recruiting, inter-
viewing applicants, and payroll entry. According to Pu-
ma, the Respondent’s business was growing and, as a
result, it needed to hire a candidate who was knowledge-
able about the various laws governing the employment
relationship so that he or she could fill a role of working
to insure that the Respondent was in compliance with
those laws.
Charging Party Brian Burns responded to the job ad-
vertisement by sending his resume representing his quali-
fications, work experience, and educational background
in human resources. Burns’ resume stated that he was
well versed in analyzing and executing recruitment strat-
egies and human resource functions, had a “compliance
mindset,” and possessed expertise in various areas of
employment and labor law. In addition, the record estab-
lishes that, during the interview process, Burns was in-
formed that part of his job would be to assist the Re-
spondent in reviewing its personnel practices for the pur-
pose of achieving compliance with the law. Burns told
the Respondent that he had conducted internal audits in
the past and was knowledgeable about compliance is-
sues.
Burn reported for his first day of work on August 10
and, as explained below, was discharged shortly thereaf-
ter on August 25. During his brief tenure with the Re-
spondent, Burns engaged in typical onboarding activities,
as well as receiving some initial job training from the
outgoing human resources specialist. He also performed
some substantive duties, such as initial hiring process
actions, conducting background checks, inputting data
into the payroll system, and reviewing employee time-
cards for accuracy. As part of his duties, Burns had ac-
cess to the Respondent’s payroll software and back-
ground investigation services. He was also given keys to
the Respondent’s filing cabinets where employee per-
sonnel files were kept and was responsible for placing
certain items into those files.
The record establishes that, each day at work, Burns
met with Puma to discuss the tasks for the day. During
one such conversation on August 19, Puma stated that
she needed to know if, in the course of conducting back-
ground checks on job applicants, Burns found any “red
flags” – meaning adverse information pertaining to ap-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
plicants. Burns then revealed to Puma that he previously
had been arrested for larceny but had pled guilty to a
lesser offense. Burns had disclosed the arrest and con-
viction in his application materials, but Puma was never
aware of the information. Puma stated that if she had
known about the conviction, she would not have hired
him.
Following that encounter, Burns, by going into em-
ployee personnel files and reviewing payroll records,
accumulated a batch of information and then proceeded
to draft a letter to Puma. Burns began the letter by stat-
ing he had “some major concerns about the workplace.”
He asserted that one of the Respondent’s employees “is a
self-proclaimed racist,” and he took issue with the work-
place radio because it played uncensored music. Turning
to compliance issues, Burns asserted that state-required
pay forms were missing from employee files; employees
were not receiving state-required tax forms; mandatory
workplace notices were not posted; and employees were
not properly clocking out for their breaks. Further,
Burns asserted that the Respondent’s paid-time-off poli-
cy “is subpar,” that some employees were making below
average demographic salary, and also that some employ-
ees, including Burns himself, were improperly classified
as exempt under the Fair Labor Standards Act (FLSA)
and should be reclassified. Burns asserted that because
of the employees’ wage, benefits, and FLSA exemption
issues, he “ha[s] and will continue to give serious
thought in regards to contacting the NLRB and attempt-
ing to organize and eventually hope to form a union
[sic].” As to his own FLSA classification, Burns re-
quested that he be reclassified as FLSA non-exempt and
provided with back wages. He stated that he “will seek
further redress through the courts or the NY Department
of Labor accordingly.”
Burns then transitioned the focus of the letter to his
August 19 conversation with Puma regarding back-
ground checks and, in a comparatively lengthy para-
graph, he addressed extensively his prior criminal record.
He asserted that he included the conviction on his em-
ployment application materials, that Puma incorrectly
believed he was convicted of grand larceny instead of
petit larceny, and that, instead of hiding the conviction,
he was forthcoming about it when Puma asked him to
look for “red flags” in the background checks. In subse-
quent paragraphs, Burns went on to allege that one of the
Respondent’s managers was age- and sex-biased. De-
spite his short tenure with the Respondent and the fact
that he had not spoken to any of his coworkers about the
workplace issues he raised, Burns concluded the letter by
stating that the workplace issues he mentioned were
“very serious,” that he had been “deeply affected” by
them, and that he “[would] not tolerate them anymore.”
As a result, Burns stated he was going to report the issues
to various governmental agencies, including the NLRB.
Burns’ letter contains no statements or indications that he
planned to work with Puma in order to help the Re-
spondent address the issues and come into full compli-
ance with the law, as his job duties required him to do.
Burns emailed this letter to Puma on the morning of
Monday, August 25.4 Prior to sending her the letter,
Burns did not discuss with any fellow employee any of
the issues described in the letter, nor did any employee
speak to Burns about concerns over wages or working
conditions, and there was no talk of a union at the work-
place. After emailing Puma the letter, Burns went to her
office and asked her to check her email. Burns then
closed the door and sat down, and Puma read the letter
on her computer as she printed it. When Puma finished
reading the entirety of the letter, she told Burns that he
was not a team player and discharged him.5
II. JUDGE’S DECISION
The judge dismissed the allegation that the Respondent
violated Section 8(a)(1) of the Act by discharging Burns.
He rejected the General Counsel’s theory that the dis-
charge was unlawful under Parexel International, LLC,
356 NLRB 516 (2011), as a preemptive strike to prevent
Burns from engaging in statutorily protected conduct. In
doing so, the judge reasoned that, given Burns’
knowledge of employment law and his recent conversa-
tion with Puma about his prior conviction, “the only rea-
son he wrote [the] letter was to see if he could retain his
job by threatening legal actions against the company, or
if that failed to establish a foundation for a retaliation
claim.” The judge also found that Burns “had no interest
in promoting, supporting, or assisting other employees in
seeking to address” any of the issues raised in the letter
and had no intention of trying to convince other employ-
ees to join or assist a union. Further, although the Re-
spondent at no point called into question whether Burns
was a statutory employee under the Act, the judge sua
sponte found that Burns’ position as a human resources
professional was “more aligned with management,” ren-
dering him a managerial employee who does not enjoy
the protections of the Act. Accordingly, the judge dis-
missed the complaint.

4 The judge inadvertently found that Burns sent the email on August
24.
5 The judge found that Puma credibly testified that after she read the
letter, Burns stated to her that he could not work under these conditions
and that he was sending the information to all of the government agen-
cies. However, the record establishes that Burns made these statements
in the letter, not orally to Puma after she read the letter.
MATRIX EQUITIES, INC. 3
The General Counsel excepts to the judge’s dismissal,
asserting that Burns is a statutory employee and that the
Respondent unlawfully discharged him as a preemptive
strike against the future protected activity that Burns ref-
erenced in his letter. We agree with the judge that the
discharge was lawful, but for different reasons. In so
doing, we find it unnecessary to pass on the judge’s find-
ing that Burns was a managerial employee and thus did
not enjoy the Act’s protections.6 Even assuming Burns is
a statutory employee, we find, for the reasons explained
below, that his discharge did not violate the Act.
III. ANALYSIS
Under Parexel, an employer violates Section 8(a)(1)
when its discharge of an employee constitutes a
“preemptive strike” to prevent the employee from engag-
ing in activity protected by the Act. 356 NLRB at 518.
The Board’s holding in Parexel is aimed at guarding
against employers erecting “a dam at the source of sup-
ply” of potential protected concerted activity and thereby
interfering with employees’ exercise of their Section 7
rights and restraining the same. Id. at 519. In reaching
this conclusion, the Board rejected the view that an em-
ployee already must have engaged in protected concerted
activity for it to find that the employee was unlawfully
discharged in order to prevent such activity. Id. at 519.
The Board stated: “If an employer acts to prevent con-
certed protected activity – to ‘nip it in the bud’ – that
action interferes with and restrains the exercise of Sec-
tion 7 rights and is unlawful without more.” Id.7 Point-
ing to established precedent holding that in certain cir-
cumstances employees who have engaged in no concert-
ed activity at all are protected from adverse action, the
Board held that what is critical is “not what the employee
did, but rather the employer’s intent to suppress protect-
ed concerted activity.” Id. at 519, 519 fns. 10 & 11.8

6 Chairman Miscimarra would adopt the judge’s finding that Burns
was a managerial employee for the reasons set forth in the judge’s
decision.
7 The judge appears to misunderstand the Board’s Parexel decision
in this regard. Specifically, he states that because the employee in
Parexel had already engaged in protected concerted activity and was
unlawfully discharged for doing so, the Board’s further finding that the
respondent violated Sec. 8(a)(1) for seeking to prevent her from engag-
ing in protected concerted activity in the future was “simply gilding the
lily.” However, the Parexel Board made clear that it assumed for the
purposes of deciding that case that the employee had not yet engaged in
protected concerted activity. Thus, the question was whether the em-
ployee’s discharge constituted an unlawful preemptive strike against
future protected concerted activity, regardless of whether the employee
had already engaged in such activity. See Parexel, 356 NLRB at 518
fn.7.
8 The Board also noted that the respondent in Parexel failed to show
that it would have discharged the discriminatee in the absence of its
Thus, under Parexel, the General Counsel has the burden
of demonstrating that the employer’s intent to suppress
protected activity was a motivating factor in its decision
to take an adverse action against an employee.
Here, it is undisputed that prior to being discharged,
Burns did not engage in any conduct that is protected by
Section 7. That is, he did not take any action that was
“concerted” and for the purpose of “mutual aid or protec-
tion,” nor did he engage in any union activity. In his
letter, Burns sought to raise a number of workplace is-
sues to Puma and communicate his dissatisfaction with
those issues. Many of the issues Burns raised amounted
to individual complaints. For example, Burns com-
plained about the music played on the office radio and
devoted a substantial portion of the letter to discussing
his prior criminal conviction and recounting in elaborate
detail his recollection of how he disclosed that conviction
to Puma on August 19. Nothing in the letter suggests
that he planned to raise these matters to other employees
in an effort to induce future group action. Similarly,
Burns referred to missing tax forms in employee files,
improper posting of workplace notices, and employees’
failure to properly clock in and out for their breaks, but
none of these references contained any suggestion that
Burns intended to engage in future concerted activity for
purposes of addressing them. The same is true for the
portions of the letter alleging that a certain manager en-
gaged in hiring practices with bias toward the sex or age
of the applicant – these allegations were made without
any discernible suggestion that in response Burns
planned to take action protected by Section 7.
In raising issues of wage disparities, FLSA classifica-
tion, and benefits policies, however, Burns stated that
these matters caused him to give “serious thought in re-
gards to contacting the NLRB and attempting to organize
and eventually hope to form a union [sic].” In addition,
in closing his letter, Burns stated that the issues he identi-
fied “can be detrimental to the . . . integrity of the em-
ployees,” that he would not tolerate them anymore, and
that he planned to report the issues to various govern-
ment agencies, including the NLRB. In this regard, the
law is settled that talking to coworkers about forming a
union and/or contacting the NLRB to file a representa-
tion petition or unfair labor practice charge, with limited
exception, is activity that Section 7 protects. Further,
Burns’ statement made in connection with the FLSA
misclassification issues that he “will seek further redress
through the courts or the NY Department of Labor” may
be construed as a statement of intent to engage in Section

fear that she would engage in protected activity in the future. 356
NLRB at 520 fn. 12.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
7 activity. See generally Beyoglu, 362 NLRB No. 152,
slip op. at 1–2 (2015) (“[A] single employee who files a
lawsuit ostensibly on behalf of himself and other em-
ployees is engaged in protected concerted activity.”).9
The General Counsel contends that the Respondent
discharged Burns to suppress his stated plans of engaging
in Section 7 activity. Under Parexel, such a discharge
would be unlawful. Contrary to the General Counsel’s
contention, however, we find that the evidence does not
support a conclusion that the Respondent discharged
Burns to prevent him from taking actions protected by
Section 7.10
The record makes clear that the Respondent hired
Burns to fill a role in which he would identify aspects of
its human resources practices that were out of step with
the law or in need of improvement and help it correct
those issues. Puma credibly testified that the Respondent
needed to hire someone to perform these functions be-
cause its business was in a growth stage and it suspected
that there were areas of non-compliance requiring prompt
correction. She also credibly testified that the reason she
hired Burns was because he proved himself during the
interview process to be knowledgeable about compliance
issues. Because Burns was discharged so soon after he
was hired, he never actually began helping the Respond-
ent achieve its desired compliance. Nonetheless, Burns
acknowledged at the hearing that one of the reasons he
was hired was to review company files to determine if
the Respondent was in compliance with various em-
ployment-related laws and regulations. Specifically,
Burns testified that he understood that it was his duty to
report misclassifications and other human resources is-

9 The judge found that Burns’ motive for threatening legal action
was to protect his job. It is well settled, however, that an employee’s
subjective motive for taking an action is not relevant to whether that
action constitutes protected concerted activity. See Fresh & Easy
Neighborhood Market, 361 NLRB No. 12, slip op. at 3 (2014), and
cases cited therein. In any event, the focus here is not why Burns wrote
the letter, but whether the Respondent responded to it with an intent to
suppress future protected concerted activity. See Parexel, 356 NLRB
at 519.
10 Chairman Miscimarra notes that he does not agree with the
Board’s decision in Parexel. The “preemptive strike” (preemptive
restraint) theory of Parexel resembles the discredited pre-Meyers
I and II theory of “inherently” concerted activity: under both, a viola-
tion is found despite a lack of evidence that any employees sought to
initiate, induce, or prepare for group action. Accordingly, the “preemp-
tive strike” theory, like the “inherently concerted” theory, is contrary to
the holdings of Meyers Industries, 281 NLRB 882 (1986) (Meyers II),
affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert.
denied 487 U.S. 1205 (1988) and Mushroom Transportation Co. v.
NLRB, 330 F.2d 683, 685 (3d Cir. 1964). Chairman Miscimarra agrees
with the majority, however, that Parexel is distinguishable from the
instant case and that the General Counsel did not establish that the
Respondent acted with the intent to suppress future protected concerted
activity.
sues to Puma. Thus, Burns was hired largely because of
his compliance experience, and he and the Respondent
shared an expectation that he would bring to Puma’s at-
tention instances of potential non-compliance with the
law and work with her on remedying those situations.
Having hired Burns to assist with compliance matters,
Puma’s reaction to Burns’ letter upon reading it centered
entirely on his failure to perform the very duties he was
hired to perform. Puma testified that as she began read-
ing the letter, she initially was pleased that Burns had
found areas in need of improvement – because he was
hired to do just that. But as she continued reading, she
realized Burns was not raising the issues to her so that
they could work together on developing and implement-
ing solutions. She testified that she was “taken aback”
by the letter and felt that Burns had betrayed the compa-
ny and her by pursuing a course of action plainly incon-
sistent with the basic purpose for which the Respondent
had hired him.11
Further and significantly in this case, Puma did noth-
ing before or after reading the letter that would suggest
she harbored animus toward Section 7 activity or dis-
charged Burns to prevent such activity from occurring in
the future. She did not, for example, inquire whether
Burns had talked to other employees about the issues he
raised. Cf. Parexel, 356 NLRB at 519 (prior to discharg-
ing employee, employer inquired whether she discussed
matters with anyone else). Nor did she accuse Burns of
“stirring up” other employees or make any other accusa-
tions that would indicate she was worried that he either
had spoken with coworkers already or would soon do so.
Cf. Lou’s Transport, Inc., 361 NLRB No. 158, slip op. at
2 (2014) (unlawful for employer to discharge employee
for posting signs in his truck window that the employer
believed were “stirring up the crowd”). Moreover, there
is no evidence or allegation of other unfair labor practic-

11 The judge found that Puma credibly testified that she discharged
Burns because “he threatened to initiate. . . legal proceedings that could
potentially cause the company to incur substantial liabilities.” Puma
did not, however, testify to that being the reason for his discharge.
Instead, as noted above, she testified that she felt betrayed by Burns’
letter given the reasons he was hired and the understanding that Burns
was going to raise concerns internally and help develop solutions.
With respect to the Respondent’s defense that Burns was disloyal
and Puma’s testimony that Burns was discharged because she felt he
had betrayed her and the Respondent, we acknowledge that employer
accusations of disloyalty can, and often do, stem from employee en-
gagement in Sec. 7 activity or employer suspicions of the same. Such
accusations may form the basis of an unfair labor practice where an
employer equates protected concerted activity with disloyalty. See
generally Carrier Corp., 336 NLRB 1141, 1148 (2001), and cases cited
therein. Here, however, as explained below, there is no evidence from
which to conclude that the references in Burns’ letter to future Sec. 7
activity formed the basis of, or contributed to, the Respondent’s belief
that he was disloyal.
MATRIX EQUITIES, INC. 5
es by the Respondent. In sum, there is nothing in the
record from which it could be reasonably inferred that
Puma or any other management official bore animosity
toward Section 7 activity, nor does the record evidence
establish that the Respondent discharged Burns to extin-
guish any plans for such activity in the future. As such,
we find that the General Counsel failed to prove that, in
discharging Burns, the Respondent was motivated by an
unlawful intent to suppress future protected activity.
Instead, what the record shows is that Burns, after hav-
ing been employed for about 2 weeks and without having
spoken to any of his coworkers about the workplace is-
sues raised in his letter, approached Puma and presented
her with an extensive letter from him as an individual
about the problems he saw in the Respondent’s work-
place. The letter communicated a range of information,
the vast majority of which did not touch on Section 7
activity and instead addressed his individual impressions
and complaints about workplace issues, as well as his
obvious concern that the Respondent might fire him for
his prior criminal conviction. Further, in identifying the
potential federal and state law compliance issues, Burns
offered no suggestions for how the Respondent could
formulate a plan to improve those areas. In this way, the
letter was drafted in a manner plainly inconsistent with
the purposes and duties for which the Respondent hired
Burns, and it was for this reason that Puma discharged
Burns. Although Burns appears to have conveyed some
intention in the letter, however veiled, to engage in activ-
ity that would be protected by Section 7, there is, as dis-
cussed above, insufficient evidence to conclude that his
references to such activity formed the basis for Puma’s
decision to discharge Burns.
Having considered all of the circumstances, we find
that the record fails to support a conclusion that Puma
discharged Burns to suppress future protected concerted
activity. We therefore find that the Respondent did not,
as alleged in the complaint, violate Section 8(a)(1) by
discharging Burns.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. May 15, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Brent E. Childerhose Esq., for the General Counsel.
Gerard J. McCreight Esq., counsel for the Respondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case on June 7, 2016, in Brooklyn, New York. The charge in
this proceeding was filed on January 25, 2016. The complaint
that was issued on March 25, alleged that the respondent dis-
charged Brian Burns because he complained about the wages
hours and working conditions of the employees.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following1
FINDINGS AND CONCLUSIONS
I. JURISDICTION
The parties agree and I find that the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
The employer is an enterprise that is engaged in providing
real estate services. It operates in several states including New
York, New Jersey, and Connecticut. The company employs
about 250 people throughout its various locations. The re-
spondent’s headquarters are located in Long Island, New York,
where it employs about 25 people who are engaged in execu-
tive or administrative functions. Among these functions is a
two-person human resources department.
Kathryn Puma is the office manager and head of the two per-
son human resource department. Prior to the hiring of Brian
Burns this department consisted or herself and Joe Farruggio.
The latter’s title was human resource specialist. Because Far-
ruggio was leaving the company in August, an advertisement
was placed for the hire of his replacement. In pertinent part, this
read as follows: Human Resources Assistant
We are seeking an ambitious HR professional to assist in the
overall operations of the HR department. Standard duties will
include but not be limited to; recruiting, employee relations,
payroll, benefits and employment law.
. . . .
Preferred Skills and Abilities:
Full cycle recruiting; job descriptions, posting, screening and
interviewing
Familiar with employment law and main HR topics

1 At times, the transcript lists the Judge as Judge Davis. This is in-
correct and should be changed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Able to develop and assist in the employee orientation process
Familiar with ADP Workforce or similar payroll systems
Payroll, Time and Attendance, 401K and Custom reports pre-
ferred
Entry in payroll/ADP for Direct Deposit, Payroll changes, etc.
Communications oriented: Draft, Revise and Release Memos
as needed.
Familiar with FMLA, COBRA & other notices
Familiar with I-9 documents and other HR paperwork
Knowledge of ACA compliance is a major plus
Preferred Education:
Bachelor’s, Master, MBA, PHR and SHRM-CP all major
pluses
In response, Brian Burns sent in his resume. In his resume,
he represented his qualifications, work experience, and educa-
tional background in human resources. In part this states:
Qualifications
Well versed in analyzing and executing recruitment strategies,
human resource functions, building the internal/external cus-
tomer experience and leading change management.
Successfully supported and executed the strategic direction of
HR, including the implementation of high-value added HR
processes that support business goals/objectives.
Proficient in creating a diverse workforce and having a com-
pliance mindset as it correlates to building an all-inclusive
working environment.
Expertise in various areas of local, state and federal employ-
ment and labor law and effectively applying them to real life
practical scenarios.
Demonstrated knowledge and abilities of various computer
and HRIS systems
Education
Doctor of Business Administration – Human Resource Man-
agement
Walden University – Online.
Anticipated Graduation Date – June 2017…
Master of Science in Human Resource Management – Gen-
eral Human Resource Management
Capella University
Master of Science in Human Resource Management Func-
tional HR Management
Walden University
Bachelor of Science in Business Management and Economics
with a concentration in Human Resource Management
SUNY Empire State College
On August 7, 2015, the company offered Burns the position
of human resources assistant. His starting salary was $45,000
per year with eligibility for medical, dental, long term disabil-
ity, and life insurance benefits after the standard probationary
period. The offer also provided for a 401K plan after 4 months
of employment.
With respect to the hiring of Burns, Kathryn Puma testified
that the company, in looking for a replacement for Joe Far-
ruggio, needed someone who would be able to replace his func-
tions. She also testified that a reason she decided to hire Burns
was because from his resume and interview, he represented
himself as being knowledgeable about compliance issues. That
is, she credibly testified that the company was growing pretty
fast, and that it needed someone who was familiar with Federal,
State, and local laws relating to employment so as to insure that
the company would be in compliance with those laws.
Burns began his employment on August 10 and lasted until
August 25. At the start of his employment Burns was trained in
the company payroll, computer, and other systems by Farruggio
who remained on for a few days. It should be noted that be-
cause Burns was employed for only 2 weeks, he did not actual-
ly get to perform many of the functions for which he was hired.
And so in his brief tenure, his ultimate job duties and responsi-
bilities never fully jelled. He did, however, have access to
confidential employee files, which were kept under lock and
key.
On Wednesday, August 19, during a discussion with Puma
about employee background checks, Burns told her that he had
been arrested for larceny and had pleaded guilty to a lesser
offense. She told him that if she had known that, she wouldn’t
have hired him.
Over the next several days, Burns, by going into the employ-
ee personnel files and reviewing payroll records, accumulated a
batch of information that he put together into a document that
he emailed to Puma on August 24. When he arrived at work on
the 25, Burns met with Puma and she read this document as it
was being printed out. At the conclusion of her reading, she
told Burns that he was fired.
Before describing this document, I note that Burns did not
discuss with any employees any of the issues that are set forth
in the document. Burns spoke to no employees and no employ-
ees spoke to him about any complaints that they may have had
about their wages or working conditions. No employee ex-
pressed any interest in forming or joining a union and he had no
conversations with any employee about unionization. Indeed,
given his conversation with Puma on Wednesday and given
Burns’ knowledge of employment law, it is obvious to me that
the only reason he wrote this letter was to see if he could retain
his job by threatening legal actions against the company; or if
that failed to a establish a foundation for a retaliation claim. I
don’t believe that he was interested in furthering the interests of
the other employees.
That said, the memorandum states in pertinent part:
I have some major concerns about the workplace at Matrix …
The first thing I want to discuss is that Chris Nelson is a self-
proclaimed racist. On August 7, he stated that he is a … racist
and was proud of it…
The second aspect I am very concerned about is that the com-
pany radio plays a plethora and variety of different
song/genres throughout the day every day. The radio does not
have colorful and expletive language censored…. This is cer-
tain not professional for anyone to have to listen to in the
MATRIX EQUITIES, INC. 7
workplace.
In New York State, each and every employee regardless of
whether they are exempt or nonexempt needs a Notice of Pay
form. This form is defined within section 195 of the NYSLL.
I have found with spot-checking employee files…. that they
do not have this form or perhaps an incomplete form within
their folders…
I have also spot checked a lot of NYS employee file folders
and have found that they are not receiving the NYS IT-2104
form. This form is the NYS tax form that must be in each em-
ployee’s folder along with the W-4 form or can be in lieu of
the W-4 form, according to the NYS Department of Taxation.
On another note, I do not see anywhere in the workplace the
required minimum wage poster, discrimination is unlawful
poster, the workers compensation certificate, Article 23-a of
the Correction Law of NYS and other required posters both
state and federal ones posited conspicuously in the work-
place.
Moving on towards payroll related issues, I notice that there
are employees … in payroll that do not earn enough to be
placed in the exempt level status….
I also noticed that many NYS employees are not punching in
and out for the mandatory 30 minute breaks when working a
shift of more than 6 hours….
The paid time off policy… is subpar at best. Between the mis-
classification of employees from exempt and nonexempt,
wage disparities and subpar compensatory, medical, dental
etc. benefits… I have and will continue to give serious
thought in regards to contacting the NLRB and attempting to
organize and eventually hope to form a union.
Salaries of some of the workers are below the average demo-
graphic salary range for what is required of them and I believe
that many employees are classified in the exempt status are
more than likely misclassified and should be reclassified in
nonexempt status. My position for example, does not rise to
the level of an exempt level classification. I merely perform
tasks that are given to me, have direct oversight from an hour-
ly manager (Kathryn Puma) and do not have the level of dis-
cretion and independent judgment, amongst other require-
ments that an exempt level position should be. Therefore, I
request that I am reclassified as a nonexempt level employee.
I am requesting back wages with interest and will seek further
redress through the courts or the NY Department of Labor ac-
cordingly.
On Wednesday August 19, 2015, I presented information to
you regarding my background check results from Castle-
branch… I came forth to you… and stated that I had a convic-
tion that came up on my background check. When I returned
with my background screening results … you looked at my
background check and said that, “if I would have known
about this before, I would not even have hired you.” I stated
that I put this information on my employment application and
was honest from the beginning. You stated… that my convic-
tion was for a grand larceny and I stated that that was the orig-
inal arrest charge and that you cannot go by that because it
was dropped down to a misdemeanor petit larceny convic-
tion….
In regards to hiring … Christina Whitehurst is clearly age bi-
ased and sex biased as well. She stated to me… that she
would rather fill Peter’s position with a girl than a guy. Her
stated reasoning for this is because she and her team will be
able to get along with a girl better than a guy.
On August 21, 2015, Ms. Whitehurst spoke to me about the
same staff accountant position. She said that she wants some-
one young, fresh and still “hungry” to fill the upcoming va-
cancy. I informed her that we needed to pick the most quali-
fied candidate regardless of anything else. She stated that she
would rather have a girl fill the vacancy rather than a guy, cit-
ing alleged team dynamic issues.
All of these workplace issues are very serious, can have se-
vere repercussions and can be terminally detrimental to the
overall stability and integrity of the employees and the com-
pany alike. These issues are severe and pervasive enough in
some instances to rise to the level of a racially hostile work
environment, age biased, sex biased and previous conviction
biased workplace. I have been deeply affected by these issues
and will not tolerate them anymore. Therefore, due to the se-
verity, frequency and continuity of these egregious violations,
I am going to report them to various governmental agencies
accordingly. These agencies will include but not be limited to
the following: The New York State Department of Labor, the
New York State Division of Human Rights, the Equal Em-
ployment Opportunity Commission, the New York State At-
torney General, the National Labor Relation Board and any
other agency that I deem suitable to report these violations to.
With respect to the conversation on August 25, Puma credi-
bly testified that after she read the email, Burns stated that he
couldn’t work under these conditions and that he was sending
all of this information to all of the governmental agencies. Pu-
ma testified that she felt betrayed and that she told Burns that
he was not a team player and that he needed to go.
Puma’s testimony was that she fired Burns not because he
raised issues about wages or terms of employment (which was
part of his job), but because instead of seeking to discuss and
resolve those issues internally as a member of the human re-
sources department, he threatened to initiate (without the con-
sent or support of any other employees), legal proceedings that
could potentially cause the company to incur substantial liabili-
ties.
Analysis
It is the General Counsel’s theory that by discharging Burns
for writing the letter of August 24, the Respondent violated
Section 8(a)(1) because it sought to prevent Burns from engag-
ing in some future protected concerted activity. Thus, the Gen-
eral Counsel, relying on Paraxel International LLC, 356 NLRB
516 (2001), asserts that it is unlawful for the employer to “pre-
emptively” discharge an employee to prevent him from engag-
ing in protected activity. He argues that this is true even in
instances where an employee has not yet actually engaged in
concerted activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
I do not agree for the following reasons.
In Paraxel the facts were that the charging party, Therese
Neuschafer, had engaged in discussions with fellow employees
about the relative wage rates given to some but not other em-
ployees. She thereupon reported those discussions to her imme-
diate supervisor and suggested that perhaps everyone should
quit and come back with a raise. This was reported to manage-
ment and Neuschafer was called in for a meeting. When satis-
fied that Neuschafer had not yet stirred up any concern about
wages or possible discrimination among other employees, the
Respondent discharged her before she could do so.
The facts in Paraxel show that the charging party had en-
gaged in discussion with other employees about their respective
wage rates, which would be protected concerted activity for
which she could not be discharged. Therefore, under existing
law, a discharge of an employee for engaging in that kind of
activity would have, by itself, been a violation of the Act. The
fact that the Respondent may also have been motivated by a
desire to prevent her from continuing to engage in similar con-
certed activity in the future is simply gilding the lily.
In the present case, Mr. Burns, although reciting a litany of
alleged labor violations in his August letter, never had any dis-
cussions with any employees about any of these issues. And I
don’t believe that he ever intended to. Indeed, it is my conclu-
sion that he was interested only in protecting his own job by
threatening to initiate a variety of legal actions and that he had
no interest in promoting, supporting, or assisting other employ-
ees in seeking to address any of those issues. Nor do I believe
that he had any intention of trying to convince other employees
to join or assist a union.
In addition, although Burns did not work long enough for us
to be certain as to what his ultimate functions would have been,
it seems to me that both his and the company’s intention was
that he would be utilized in a professional/managerial position.
In this regard, the company’s job advertisement was for a per-
son with a professional education in human resources who
would be involved, inter alia, in addressing legal issues relating
to employment. For his part, Burns represented that he was
soon going to obtain a PHD in human resources and that he had
“expertise in various areas of local, state and federal employ-
ment and labor law and effectively applying them to real life
practical scenarios.” It is therefore my conclusion that the in-
tention of both parties was that Burns would be utilized to for-
mulate labor relations policies so that the company would be in
compliance with the various Federal, State, and local laws that
regulate employment relations.
It seems to me that one of the functions of a human resource
professional is to help his or her employer avoid (but not
evade), potential legal liabilities that can arise in the course of
doing business. In my opinion, a person in Burn’s position is
essentially more aligned with management and has the job of
advising his employer as to how to comply with the law. And if
he finds during the course of his employment, that there are
practices or procedures that may be contrary to law, his func-
tion is to devise, in consultation with his superiors, remedies to
redress those situations where potential liabilities may arise. In
my opinion, it is not the job of such a person to surprise his
employer by first initiating, on his own initiative, legal actions
against his own company.
In short, I conclude that because Burns was hired as a human
resources professional, his position was aligned with manage-
ment and he should be construed as a managerial employee. As
such, I conclude that he does not enjoy the protection of the
Act. See NLRB v. Bell Aerospace Co., Div. of Textron, Inc.,
416 U.S. 267 (1974). Cf. Solartec, Inc., 352 NLRB 331 (2008),
where the Board although finding that the employee was not a
managerial employee, nevertheless opined that managerial
employees are not protected by the Act.2
For the reasons described above, I therefore recommend that
the complaint be dismissed.
Dated, Washington, D.C. July 12, 2016

2 In NLRB v. Yeshiva University, 444 U.S. 672, 687–688 (1980), the
Supreme Court pointed out that the purpose of exempting managerial
employees from the Act’s protection is to ensure “that employees who
exercise discretionary authority on behalf of the employer will not
divide their loyalty between employer and union.”