In an Advice Memorandum issued by the National Labor Relations Board’s Office of the General Counsel, it was determined that an employee who disseminated information related to a team leader’s pay information lost the protection of the National Labor Relations Act (NLRA) because the employee improperly received the document.

In this case, in the midst of a union organizing campaign, an employee noticed a bonus request in a basket on the team leader’s desk, which was adjacent to a work station.  The bonus request, completed and signed by the team leader, was for $350 for “non-union support” and was not labeled “confidential.”  The employee photocopied the form, showed it to a coworker, and explained to the coworker how he retrieved a copy of the form.  The coworker in turn posted it on the union’s closed, private Facebook group for union supporters that were mostly employees of the company.  The employer subsequently terminated the employee who posted the photograph (Posting Employee).

In the Advice Memo, the General Counsel’s office determined that although the Posting Employee engaged in protected concerted activity when he posted information about wages, the Posting Employee lost the protection because the document had been improperly taken from a private desk.  The Advice Memo explained that “such disloyal” conduct is not protected by the NLRA:

The Board has held that the disclosure of certain types of information, which may otherwise constitute protected concerted activity, may involve such disloyalty to an employer that the disclosure falls outside the Act’s protection.  Examples of such disloyalty include an employee taking and disseminating employer information they knew they had no right to access.

In this case, the employee should have known that access to the document was improper since the document was taken from the team leader’s desk, an area that gave him some expectation of privacy, and the document itself was of a private nature since it concerned the team leader’s compensation as opposed to general wage data.

A copy of the case, Kumho Tires, NLRB Div. of Advice, Case 10-CA-208153, may be accessed here.