NLRB Decision Highlights Extent of Protected Employee Activity

May 17, 2018

The National Labor Relations Board (NLRB) recently issued a decision in Mexican Radio Corp., holding that the restaurant company violated the National Labor Relations Act (NLRA) at a now-closed New York City location when it fired four employees after each of them emailed a group of other restaurant employees and owners supporting  a former employee who complained about various workplace issues, including wages, schedules, and treatment of employees.

The former employees brought an action, claiming that they were unlawfully terminated under the NLRA for exercising their protected rights. The NLRB upheld an administrative law judge decision that the emails were part of an ongoing dialogue between workers and the restaurant management, contained little profanity, and did not cause a loss of reputation or disruption of its business.

Mexican Radio had attempted to justify the terminations on the employees’ use of profanity in the emails. Under NLRB precedent, an employer may terminate an employee for engaging conduct that would otherwise be protected concerted activity if the behavior is “opprobrious” enough. However, the Board refused to apply this precedent in the case, because the place of discussion through the emails was in private and not in person.

Employers, including ILMA members, should remain mindful that employees have rights to discuss terms and conditions of employment, including over social media when off duty, and may not be terminated for doing so. It is important to ensure that employee handbooks and manuals comport with the latest NLRB guidance.