Two important principles under the National Labor Relations Act are worth reiterating to construction employers: first, employees cannot be disciplined for engaging in activity protected by that Act; and, second, employers may still discipline employees in the wake of protected activity as long as the discipline occurs for unrelated misconduct.

The decision of a National Labor Relations Board administrative law judge (ALJ) in the matter of Redi Carpet, Inc., No. 16-CA-292266 (June 1, 2023), clearly illustrates these principles.

Background

Redi Carpet involved a nationwide flooring contractor that specializes in multi-family flooring. At its headquarters in Texas, it employed Charlene Tiarra De Leon as a purchasing inventory clerk. In early-January 2022, the company hired another employee in the same department as De Leon. Based on that other employee’s prior experience, she was hired at a pay rate of $18.00 per hour. At the time, De Leon was earning $16.50 per hour. After learning of this pay discrepancy, De Leon complained to management that she should be paid more. She also complained about the pay disparity to coworkers. De Leon caused such a ruckus with her complaints that the new hire resigned her employment after only a few weeks.

The company issued De Leon a final warning for disruptive work behavior. Among other conduct, it said she had “engaged in open discussion of a team member’s salary which created an environment the teammate [sic] was no longer comfortable...

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