NLRB Advice Memoranda, Rotten Johnny's Wood Fire Pizza, National Labor Relations Board, (Sep 21, 2022)

This matter has been submitted to Advice as to whether The Village Grind LLC d/b/a Rotten Johnny's Wood Fire Pizza Pie (the Employer) engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by discharging the Charging Party (“CP”) because ​     ​ engaged in protected concerted activity by sending the Employer a text message complaining about another employee creating a hostile work environment, and because it involves the applicability of Alstate Maintenance, LLC, 367 NLRB No. 68 (2019) (narrowly construing what rises to the level of concerted activity).

We conclude that the CP was engaged in a personnel altercation with another employee and neither acted in concerted with other employees under extant law, nor was this conduct, i.e., the creation of a hostile work environment, “inherently concerted” under that law. Given that there are no violations of extant law, nor violations of any related allegation, dismissal is warranted. [1]

The CP, a ​     ​ at the restaurant, who started there in ​     ​ alleges that ​     ​ had asked another employee (El) to cover ​     ​ shift and El declined causing the CP to send a group text to all the ​     ​ asking if any of them could cover ​     ​ shift, and wherein ​     ​ also noted that El declined ​     ​ request. And while the CP cannot recall whether certain alleged name-calling occurred on the same day ​     ​ sent the group text, ​     ​ asserts that while ​     ​ was cleaning glasses El called ​     ​ but did not actually say ​     ​ At 10:00 p.m. on November 1, 2021, the CP texted the owner noting that El had called ​     ​ a ​     ​ noting this was keeping ​     ​ up at night, that ​     ​ had zero tolerance for a hostile work environment, would not be bullied and insisted that the Employer discipline this employee.

Thereafter, the Employer questioned the employee accused of calling the CP a ​     ​ about the allegation. El denied saying that and said that, in fact, it was the CP who was disrespectful having called the kitchen manager a “fucking asshole” for not making ​     ​ free food when ​     ​ worked only a half shift. The Employer then questioned other employees about the CP, and they allegedly all reported that it was the CP that was hostile. After consulting with ​     ​, who co-operates the restaurant, and ​     ​ kitchen manager, The Employer decided to discharge the CP because ​     ​ was not a good fit for the restaurant.

We conclude that under extant law, the evidence does not establish that the CP's text message constituted concerted activity because there is no evidence that they discussed the allegation of a hostile work environment with any other employees, and the text message on its face raises concerns only about the other employee's conduct toward the CP. See, Alstate Maintenance, LLC, 367 NLRB Slip op. 6 ( In Meyers II, the Board held that the definition of concerted activity “encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action” or where individual employees bring “truly group complaints to the attention of management.” Citing as controlling, Meyers Industries, 281 NLRB 882 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). See, also Tampa Tribune, 346 NLRB 369, 371-72 (2006) (employee who raised personal gripe about favoritism not engaged in protected concerted activity because he was speaking only for himself and there was no evidence that coworkers even shared his belief that favoritism existed). In the instant case, there is no evidence that the CP was seeking to induce group action or that any other employee shared this as a common concern with the CP. [2]

Moreover, the Board has not yet extended the “inherently concerted” doctrine to employee discussions and actions concerning workplace harassment, and this case is not an appropriate vehicle for seeking that extension where there is neither a violation under extant law nor any related meritorious allegations. [3]

This email closes this matter in the Division of Advice.

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