## Facts

- Margaret Elias, a cashier at a Scottsdale, Arizona grocery store, posted a breakroom note seeking enrollment in alcohol-sales training (“TIPS”).
- The next day, someone altered “TIPS” to “TITS” and drew a figure described as urinating on Elias’s name.
- Elias treated the incident as sexual harassment and attempted to pursue an internal complaint.
- To document what occurred, Elias recreated the whiteboard content on paper and asked coworkers and her team leader to sign as witnesses.
- The employer investigated, identified the employee who defaced the board, and disciplined that employee; Elias was not disciplined.
- During the investigation, an HR manager questioned Elias about obtaining coworker statements and instructed her not to obtain additional statements while the investigation was pending.
- Elias filed an unfair labor practice charge alleging the questioning and instruction interfered with her rights under NLRA § 7, in violation of § 8(a)(1).
- The employer also maintained certain workplace rules (including a confidentiality rule) found unlawful under § 8(a)(1) and addressed in the remedial order.

## Issues

1. Whether seeking coworkers’ assistance and signatures to support an internal sexual-harassment complaint is “concerted activity” for “mutual aid or protection” under NLRA § 7.
2. Whether the HR manager’s questioning and instruction not to seek further statements during the investigation unlawfully interfered with § 7 rights in violation of § 8(a)(1).
3. Whether prior Board precedent treating similar conduct as unprotected should be followed or overruled.

## Decision

- The Board held that Elias’s efforts to obtain coworker support for her sexual-harassment complaint were concerted activity for mutual aid or protection under § 7.
- The Board overruled prior precedent to the extent it required treating such conduct as outside § 7’s protection.
- The Board found no § 8(a)(1) violation based on the HR manager’s questioning and limited instruction in the circumstances presented.
- The Board affirmed findings that certain employer rules (including a confidentiality rule and related provisions) violated § 8(a)(1) and ordered remedial revisions and nationwide notice posting.

## Legal Principles

- An employee’s attempt to enlist coworkers as witnesses or supporters in raising workplace complaints about harassment or discrimination can constitute protected concerted activity under NLRA § 7.
- “Mutual aid or protection” includes collective efforts to assert or enforce workplace rights tied to terms and conditions of employment, including rights reflected in antidiscrimination and anti-harassment laws and employer procedures.
- Employer conduct during an internal investigation is not automatically unlawful merely because it touches protected activity; whether questioning or directives are coercive depends on the context and their tendency to interfere with § 7 rights.
- Overbroad workplace rules—such as confidentiality provisions that would reasonably chill employees from discussing workplace concerns with one another—may violate § 8(a)(1).

## Conclusion

The Board ruled that obtaining coworker corroboration for an internal sexual-harassment complaint is protected concerted activity under § 7, rejected contrary precedent, and held that the employer’s limited instruction during an active investigation was not coercive on these facts, while separately requiring revision of unlawful workplace policies.


Fresh & Easy Neighborhood Market, Inc., 361 N.L.R.B. 151 (2014)