In a unanimous
decision last month, a three-member panel of the National Labor Relations
Board (NLRB) found that a restaurant company violated the National Labor
Relations Act (NLRA) when its New York City location fired four employees after
the employees emailed other employees and managers to complain about, among
other things, work schedules, the company’s tip policies, and the management’s
treatment of employees.
The case
arose after an employee wrote an email upon her resignation complaining about
management’s treatment of employees, tip policies, work schedules, and more. The
email included some profanity. The now-former employee sent the email to
several employees as well as the owners of the company and several managers. Four
of the employees replied-all to the email with positive messages including agreeing
with its contents and expressing support and gratitude for the former employee
and her message. Three of the four employees had spoken with each other about
the contents of the email before they sent their responses. Shortly after the
employees replied to the email, all four employees were terminated.
The NLRB panel
agreed with an administrative law judge’s decision following trial that the
four employees engaged in protected concerted activity when they replied in
agreement to the former employee’s email. The NLRB has found concerted activity
when employees discuss matters of common concern, such as wages, sharing tips,
working conditions, or work schedules, even when no specific group action is
discussed, reasoning that such discussions often precede group action. Further,
concerted activity includes activity that is engaged in, with, or on the
authority of other employees, activity where individual employees seek to
initiate, induce, or prepare for group action, and “individual employees
bringing truly group complaints to the attention of the management.” In
analyzing the email activity here, the panel noted that the email was a
culmination of the complaints made by employees to management and that several
of the employees consulted with one another before sending out their support
for the email. Further, the fourth employee, although she did not consult with
others before responding, supported the group action mentioned in the email. Accordingly,
the panel found that the emails were protected concerted activity.
In addition,
the panel rejected the employer’s argument that the employees’ activities were
not protected due to the “nasty” and “deeply insubordinate” nature of the emails.
When an employee engages in abusive misconduct during activity that is
otherwise protected, the employee forfeits the NLRA’s protection. The panel
concluded, however, that the replies were not so egregious as to cause them to
lose the protection of the NLRA. The panel emphasized that the email was part
of an ongoing dialogue between the employees and the employer and was a
reaction to the employer’s failure to correct problems raised by employees; the
email contained only a little profanity and was “merely a critique” of the
employer’s management style; the employees that responded did not add to the
email with any negative comments of their own; the email was nonpublic and
accordingly did not cause a loss of reputation or business for the employer;
and there was no disruption of the employer’s business.
The panel
ordered the employer to reinstate the employees and to reimburse them for any
loss of earnings and other benefits suffered as a result of the discrimination
against them, among other remedies.
In light of
the NLRB’s continued focus on protected concerted activity, employers should
exercise caution in taking adverse actions based on employees’ group emails or other
electronic communications that include discussions related to the
employees’ terms or conditions of employment.
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