Employment Law Daily Servers’ messages thanking coworker for criticizing management were protected activity
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Friday, October 18, 2019

Servers’ messages thanking coworker for criticizing management were protected activity

By Wayne D. Garris Jr., J.D.

In her resignation email, a bartender criticized the restaurant’s owner and general manager; shortly thereafter, several servers were terminated after replying to the email to thank the bartender for speaking up for them.

In an unpublished decision, the Second Circuit denied a restaurant’s petition for review of the NLRB’s decision finding it violated the NLRA when it fired four servers who stated their support for a bartender who criticized the restaurant’s management and ownership in her resignation email. Although the bartender’s email was inflammatory and contained profane language, her comments could not be attributed to the servers. Applying the Atlantic Steel factors, the court agreed with the Board that the employees’ messages thanking the bartender for her comments were not “so opprobrious” as to lose the protection of the NLRA (Mexican Radio Corp. v. NLRB, October 15, 2019, per curiam, unpublished).

New manager. Almost immediately after the restaurant operator hired a new general manager, the restaurant’s employees began complaining to the owner and director of operations about the GM’s disrespectful conduct and the unsanitary conditions at the restaurant.

Resignation letter. A few months later, a bartender sent an email to the owners, managers, and certain employees announcing her resignation and criticizing the general manager, the unsanitary conditions, the owners’ business practices and management’s lack of response to the employees’ complaints. The server also accused the owners of tax fraud and used some profane language.

Reply to all. After discussing the email among themselves, four servers each used “reply all” to respond to the email stating their agreement with the bartender and thanking her for voicing the concerns of other employees. Over the next two days, all four of the servers who replied were terminated. The employer’s stated reason for the terminations was insubordination by replying “to an email containing false accusations concerning both management and ownership and inappropriate language.”

NLRB process. An ALJ concluded that the employees engaged in protected concerted activity and that their email replies were not so opprobrious as to lose the protection of the NLRA. The ALJ also rejected the employer’s explanation that it fired the employees because they refused to meet with management or because they abandoned their jobs, finding that the terminations were motivated by the employees’ replies to the email. The Board adopted the ALJ’s findings and recommended order.

Atlantic Steel factors. In cases involving direct communications between an employer and a manager, the Board applies the factors established by Atlantic Steel Co., to determine if the communications are protected by the NLRA. In more recent cases involving comments made in a nonwork setting, the Board applies a “totality of circumstances” analysis. The court, noting that the employee’s conduct was protected under either framework, applied the four Atlantic Steel factors here.

Place of discussion. The employer first argued that the “place of discussion” factor weighed against protection because in cases involving modern communication technology, the “pertinent question” is “whether or not the comments were made in front of other employees.” Here, the court found the fact that the emails were sent to a limited group of employees did not weigh against a finding of NLRA protection. In fact, said the court, such a finding would be “antithetical to the nature of concerted action.” Thus, to the extent this factor was applicable, it weighed in favor of NLRA protection.

Subject matter. As to the employer’s contention that the subject matter factor weighed against the employees because their replies were not immediate outbursts made in the heat of the moment, the court, characterizing this argument as “meritless,” concluded that this factor has nothing to do with the timing or emotional nature of the comments. Here, the email chain consisted of a discussion of ongoing problems at the restaurant that had been previously raised with management. Thus, this factor weighed in favor of protection.

Nature of the comments. Regarding the “nature of the employee’s outburst,” while the employer tried to attribute the critical and profane language in the bartender’s email to the terminated servers, this, said the court, contradicted Board precedent in which employees who “liked” a Facebook post did not lose the protection of the NLRA just because the discussion around the post contained unprotected content. Turning to the content of the employees’ replies, the court agreed with the Board that they did not make any negative comments of their own, did not criticize the GM or owners, and did not use any profanity. This factor also weighed in favor of protection.

Provoked by unfair labor practice. And while the employer argued that there was no evidence to suggest that any unfair labor practice provoked either the email or the employees’ actions following it, the Board determined that the emails were provoked, in part, by the GM’s remark that “[i]f you guys don’t like how things [are] working here, then you can go look for another job, you can leave.” The GM’s comment, said the court, amounted to an unfair labor practice because it threatened termination and had the tendency to restrain the employees’ exercise of their Section 7 rights.

Pretext. Lastly, the court agreed with the Board’s finding that the employer’s stated reason for terminating the employees was pretextual. The employer asserted that it fired the employees for refusing to speak with the owners or abandoning their positions. The record showed, however, that the employer viewed the employees’ replies as insubordinate. Furthermore, all of the written reprimands issued to the servers reflected that their emails were the motivation for termination.

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