The NLRB continues to find fault with employers who discipline or terminate employees for sending emails discussing the terms and conditions of employment.
When four restaurant workers at Mexican Radio responded to a group email from former employee Annette Polanco complaining about the wages, work schedules, tip policy, and the treatment of workers, the now-closed Manhattan location of the chain responded by preparing reprimands and then terminating their employment.
As background, Mexican Radio restaurant is headquartered in New York, and at the time of the complaint was operating restaurants across the state. The specific complaint at issue arose when a General Manager allegedly told her staff at the first meeting she held that the restaurant was instituting new staffing and tip policies, and “if you don’t like it, you can go.” Also at that meeting, the General Manager allegedly made discriminatory and derogatory remarks toward employees, such as wondering if one employee was “dead yet,” referring to her absence from work due to an illness, according to the decision.
Upon her resignation, Polanco wrote a group email to coworkers, in which she complained about the General Manager. Four of her coworkers replied, agreeing with the complaints. After reviewing the email chain, management opined that the “contents of email were ‘extremely insulting’ and ‘deeply insubordinate,’” and the responses from the servers were “deeply concerning.” In determining to terminate the workers’ employment, management stated it considered that the email used inappropriate language, and that the workers refused to be interviewed by management about their concerns after the email thread, and skipped or walked out on scheduled shifts.
The workers filed an NLRB charge alleging retaliation for engaging in protected concerted activities. Last year, an ALJ issued a decision finding that Mexican Radio had violated section 8(a)(1) of the NLRA by discharging the workers in retaliation for their protected activity. Mexican Radio filed exceptions, arguing that the ALJ’s ruling was part of a larger trend of the NLRB extending its reach over nonunion employers, and that the decision would “cripple” small businesses. A three-member panel of the NLRB affirmed the ALJ’s decision in Mexican Radio Corp. and Rachel Nicotra, Case 02-CA-168989, last week (available here).
The NLRB considered that the “email was nonpublic and did not cause a loss of reputation or business for the Respondent; and there was no disruption of business.” The NLRB also found that the profanity was not “so egregious as to lose protection of the Act,” and that the restaurant’s proffered justification for terminating employees who refused to participate in the investigation or walking out on shifts was pretextual.
The panel did make one adjustment to the ALJ’s decision, ruling that Mexican Radio also violated the Act when it issued a written reprimand to one worker about an alleged failure to report an incident concerning another employee to management immediately. The ALJ found that the restaurant did not discipline the worker until after she sought compensation for her termination.
The panel ordered Mexican Radio to reinstate the employees and to compensate them for any lost wages and benefits, in addition to posting a notice of the NLRB’s finding that it violated federal labor law.
Takeaways for Employers:
- Here, the employer attempted to justify the terminations due to the employees’ use of profanity in the emails. Under the Atlantic Steel test, an employer may terminate an employee for engaging conduct that would otherwise be protected concerted activity if the behavior is “opprobrious” enough. Atlantic Steel Co., 245 N.L.R.B. 814, 816 (1979). However, the Board will not apply the Atlantic Steel test to cases involving email – even where the content is particularly vulgar – because the place of discussion is private and not in person.
- Companies should ensure policies and handbooks comply with the NLRB’s current guidance on email and social media use and do not interfere with employees engaging in protected concerted activity when off duty. However, while policies prohibiting vulgar and offensive comments need to be sensitive about infringing on NLRA-protected rights, employers should be prepared to enforce those policies in appropriate circumstances.
- While the NLRB here seemed to base its decision on the private nature of the discussion, Facebook and other social media postings may be similarly protected under the Act, as we previously mentioned here.