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Insulting the boss was not protected under the NLRA

Not concerted effort

Posted June 1, 2018

Ralph, a restaurant employee, was fairly outspoken. Even though he had been promoted twice in as many years, he didn’t always agree with what management did. When the smoking rules were changed to allow only one employee in the designated smoking area at a time, Ralph voiced his discontent with the manager. Ralph also believed the manager did not help out enough in the kitchen. On one occasion, Ralph noted that the manager knocked over a rack of clean silverware and did not help pick it up, but rather watched as the hostess did it.

The manager was not without his side of the story. He was frustrated with various aspects of his employees’ activities, including the early closing of the dessert station, excessive smoke breaks, and the use of mobile telephones.

One day, during a staff meeting, the manager voiced some of his frustrations. At the end of the meeting, he asked if anyone had anything more to say. This sparked Ralph to respond, in somewhat colorful language, that the manager did not help out in the kitchen as much as he should, citing the silverware incident. The manager replied that he would discuss his job duties with Ralph later.

Indeed, at the end of the shift, the manager asked Ralph if he liked working there. Ralph said he did, but felt the need to speak up about issues that required change for things to get better. With that, he was fired.

Ralph filed a claim with the National Labor Relations Board (NLRB), arguing that he was fired because he engaged in protected concerted conduct by criticizing his manager. The employer alleged that Ralph was not expressing a complaint on behalf of his coworkers, but rather, an individual gripe that he had about his manager’s aversion to helping out kitchen staff.

The National Labor Relations Act (NLRA) protects employee rights to engage in concerted activity with or on the authority of other employees, and not solely by and on behalf of the employee himself. This definition includes instances in which an individual employee brings group complaints to the attention of management. Individual action can be concerted where the evidence supports a finding that the concerns expressed by the individual are the logical outgrowth of the concerns expressed by the group. This, however, was not the case for Ralph.

In its May 18 decision, the NLRB found that there was no corroboration for Ralph’s hearsay testimony that any of his coworkers complained about or otherwise shared his concerns about the manager’s involvement in kitchen operations. Ralph’s use of vulgar language also did not help his case.

The NLRA protected activities do not include employees’ personal gripes directed at supervisors and managers unrelated to their terms and conditions of employment. In this case, Ralph insulted the manager by accusing him of doing nothing at the restaurant, an expression that can be reasonably interpreted as questioning the scope of his managerial responsibilities. It did not entail the very nature of Ralph’s work conditions, but rather, was calculated to undermine the manager’s authority. Therefore, it was not protected activity.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.

Employment Law Essentials ManualJ. J. Keller's Essentials of Employment Law Manual covers more than 100 vital HR topics, including FMLA, ADA, HIPAA, FLSA, COBRA and more.


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