Ah, the perils of “reply all.” We’ve all been there – but did you know that doing so can implicate the National Labor Relations Act? This was the case in Mexican Radio Corp. v. NLRB. In August 2015, a restaurant hired a new general manager. Soon after this hire, employees lodged numerous complaints with the restaurant’s director of operations about the general manager’s alleged demeaning treatment of employees, as well as the restaurant’s unsanitary conditions.
Two months later, the bartender tendered her resignation. This was not your run-of-the-mill resignation letter, however. Rather, the bartender broadcast her resignation in a group e-mail to the restaurant’s owners, managers, and several employees. The e-mail reiterated complaints about the general manager, unsanitary working conditions, and management’s general failure to address employees’ concerns. The resignation e-mail also encouraged employees to stand up for their rights. Transitioning to a more scorched-earth approach, the bartender then attacked the owners’ business practices, made allegations of tax fraud, and accused the general manager, a woman, of having – ahem – improper romantic designs on the male restaurant porters. (It will be unsurprising to you that there was profane language used, as well.) Four employees individually replied to all of the e-mail’s recipients. Generally, each voiced agreement with the bartender’s sentiments and thanked her for standing up for them.
I’m sure it’s not a shock to you that the restaurant fired all four employees within the next two days. The National Labor Relations Board, however, held that the restaurant violated the National Labor Relations Act (NLRA). The NLRA protects employees’ rights to engage in “concerted” (or group) activity regarding the terms and conditions of their employment. By terminating the employees because they had engaged in a group email discussion about their concerns about the general manager and working conditions, the employees were engaged in such protected concerted activity. Furthermore, the Board found that the employees’ email replies were not so “opprobrious” (yes, that’s the legal standard – meaning, essentially, outrageously abusive) as to lose the protection of the NLRA.
The Second Circuit enforced the Board’s decision. The restaurant argued that the employees lost the NLRA’s protection by endorsing the profane contents of Polanco’s e-mail. The court rejected that argument, finding, in part, that the employer could not attribute the bartender’s critical and profane language to the terminated employees. Rather, the employees were expressing agreement with ongoing issues in the workplace that affected many employees. The court analogized this situation to a similar holding that an employee did not lose the NLRA’s protection when he “liked” a Facebook post that included some content that was not protected by the NLRA.
While this case was hardly a controversial decision in the labor law world, the case reinforces an important point: while we’d all like to fire those coworkers who “reply all” to e-mails, it’s best to not do so if those replies also constitute protected concerted activity.