NLRB Judge Rules in Favor of Workers in Wrongful Termination Claim

restaurantFederal labor law, primarily through the National Labor Relations Act (NLRA), protects the right of employees to engage in various activities related to organizing for the purpose of collective bargaining. This includes actions directly related to organizing and “concerted activities” that involve matters of concern to employees. The National Labor Relations Board (NLRB) investigates alleged violations of workers’ rights under the NLRA. An administrative law judge (ALJ) with the NLRB recently ruled in favor of a group of workers who alleged that their employer unlawfully fired them because of an email exchange that criticized the employer and some of its managers. Mexican Radio Corp., Case No. 02-CA-168989 (NLRB, N.Y. Office, Apr. 26, 2017). The ALJ ruled that the workers were engaging in concerted activity protected by the NLRA.

Among other rights, the NLRA protects workers’ right “to engage in…concerted activities for the purpose of…mutual aid or protection.” 29 U.S.C. § 157. Employers may not “interfere with, restrain, or coerce employees” who are exercising their rights under the NLRA. Id. at § 158(a)(1). The NLRA defines “protected concerted activities” very broadly. It protects workers in this regard even if they are not members of a labor union. Workers are not obligated under this provision to “present a specific demand upon their employer to remedy a condition they find objectionable.” Labor Board v. Washington Aluminum Co., 370 U.S. 9, 14 (1962). In that case, the Supreme Court found that the workers’ lack of a bargaining representative, combined with immediate circumstances, required them “to speak for themselves as best they could.” Id.

The respondent in Mexican Radio Corp. operates a restaurant. According to the ALJ’s written decision, three employees made a concerted complaint to the respondent in early October 2015 regarding their work schedules and other employment-related issues. In late October, the three employees, along with a fourth employee, responded to a group email sent by a former employee who had recently resigned. The former employee addressed concerns about work schedules, tip policies, and complaints about a specific manager in the email. The four employees expressed support and agreement with many of the allegations. On the following day, the respondent reprimanded and then terminated all four employees.

According to the ALJ, the respondent’s owners “were taken by surprise at the content of the email,” with one of them calling it “hurtful and mean spirited.” Mexican Radio, dec. at 16. The other owner called it “deeply insubordinate.” Id. at 17. The reprimands that accompanied the termination of the employees stated that the email “included false accusations concerning both management and ownership and…inappropriate language.” Id. at 21.

The employees filed a complaint with the NLRB, arguing that the group email constituted protected concerted activity and that the respondent violated their rights under the NLRA. The ALJ agreed with them and ruled in their favor. The judge noted that the employees had already complained to the respondent about the issues addressed in the email, that the email was nonpublic and therefore not harmful to the respondent’s reputation, that it did not disrupt the respondent’s business, and that the employees “did not add to the email with any negative comments of their own.” Id. at 32.

If you have a dispute with an employer in New Jersey or New York, a knowledgeable and experienced retaliation attorney at the Resnick Law Group may be able to assist you. Contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation.

More Blog Posts:

NLRB Counsel Issues Memo on Labor Practices at Universities, The New Jersey Employment Law Firm Blog, April 25, 2017

Court Rules Against “Persuader Rule” Regarding Union Organizing Rights, The New Jersey Employment Law Firm Blog, February 26, 2017

NLRB Rules in Favor of Employees Disciplined for In-Store Protest, The New Jersey Employment Law Firm Blog, December 16, 2016

Photo credit: WikimediaImages [CC0 1.0], via Pixabay.

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