Why it matters

Employees who responded in support of a group email complaining about working conditions at a restaurant engaged in protected concerted activity under the National Labor Relations Act (NLRA) and, therefore, their termination violated the statute, the National Labor Relations Board (NLRB) declared. A former employee sent a group email to the managers and owners, as well as former employees, at Mexican Radio restaurant that complained about wages, work schedules, tip policies, working conditions and management’s treatment of employees. When four other workers responded in support of the email, they were fired. An administrative law judge found that their terminations violated Section 8(a)(1) of the NLRA because the employees were engaged in protected concerted activity. On appeal, a three-member panel of the NLRB agreed, additionally finding that the employees’ replies were not so egregious as to cause them to lose the protection of the Act.

Detailed discussion

In August 2015, the owners of New York City restaurant Mexican Radio hired a new general manager (GM). Within weeks, a waitress emailed the owners to complain about the new GM and the way she treated the employees, including her making discriminatory remarks and cursing.

Problems continued, however, with the GM making changes to the scheduling. When the employees objected, she told them, “If you don’t like it, you can go.” Frustrated with the scheduling—and the imposition of a tip pool that the wait staff felt was unfair—several of the employees filed a complaint with the New York City Health Department. After violations were uncovered, another manager threatened to “find out” who had reported the restaurant.

One of the bartenders resigned and sent an email to the managers, the owners and several employees at the restaurant. The email discussed the changes at Mexican Radio, detailing the workers’ repeated complaints about scheduling, wages, the tip pool and the unsanitary conditions, as well as the lack of response on the part of management and ownership.

Four of the employee recipients responded to the email. One stated, “Wow, Anette, gracias, Thank you for standing up for us. We will miss you,” while another wrote, “Just finished reading and I agree. Sad that things have to be this way.” A third answered, “I’m glad you said what you felt was right. I understand your point of view 100%. Thanks [sic] you for being voice for us all!” and the fourth wrote, “I agree a 100% as well.”

The managers and owners then terminated all four of the workers, telling one, “I don’t think you can work here any longer” if she agreed with the contents of the email. When the workers filed for unemployment benefits, the employer objected, telling the Department of Labor that the employees were terminated for insubordination.

After the workers filed charges with the National Labor Relations Board (NLRB), the agency charged the restaurant with interfering, restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act (NLRA), in violation of Section 8(a)(1) of the Act.

At trial, the employer argued that the email was an expression of the individual author’s personal gripe and not a protected concerted activity. Simply responding to a group message did not merit protection under the statute, Mexican Radio told the administrative law judge (ALJ).

But the ALJ reached a different conclusion. “The email was a culmination of the complaints made by the [employees] to [the managers and owners],” the ALJ wrote. “Concerted activity includes not only activity that is engaged in with or on the authority of other employees, but also activity where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.”

If the employee or employees who are acting in concert are seeking to improve terms and conditions of employment, their actions are for mutual aid and protection of all employees within the meaning of Section 7, the ALJ added. “Actions taken by the [employees] were for mutual aid or protection and include activity to ‘improve terms and conditions of employment or to otherwise improve their lot as employees.’”

The ALJ further determined that the workers were not insubordinate and did not lose the protections of the Act, rejecting the employer’s contention that the email was “pretty nasty” and “deeply insubordinate.”

“Here, the four discriminatees merely agreed to a nonpublic email from a former employee,” the ALJ said. The four discharged employees did not add to the email with any negative comments of their own, the email was part of an ongoing dialogue between the workers and managers/owners, the email itself contained little profanity and was not insubordination but “a critique of the management style.” In addition, the nonpublic message did not cause a loss of reputation or business, and there was no disruption of business resulting from the email.

The ALJ ordered the employer to cease and desist from violations of the NLRA, to offer the four terminated employees full reinstatement and to make them whole for any loss of earnings.

Mexican Radio appealed, and a three-member panel of the NLRB affirmed.

“We agree with the judge that [the four employees] engaged in protected concerted activity when they replied in agreement to a group email written by a former employee … that complained about wages, work schedules, tip policies, working conditions and management’s treatment of employees,” the Board wrote.

“We further agree that their replies were not so egregious as to cause them to lose the protection of the Act. As the judge noted, the email was part of an ongoing dialogue between the workers and the Respondent and was a reaction to the Respondent’s failure to correct the problems perceived by the employees; the email contained little profanity and was merely a critique of the Respondent’s management style; the employees did not add to the email with any negative comments of their own; the email was nonpublic and did not cause a loss of reputation or business for the Respondent; and there was no disruption of business.”

Concluding that the employer violated Section 8(a)(1) of the NLRA, the NLRB affirmed the ALJ’s order.

To read the decision and order in Mexican Radio Corp., click here.