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Column: Pizzeria worker rightly fired for saucy language
FRANK J. SAIBERT
Law Bulletin columnist
Published: June 15, 2018
Ralph Groves worked at Ava’s Pizzeria on Maryland’s Eastern Shore. It did not end well.
His manager at Ava’s was Brian Ball.
In October 2016, Ball called a staff meeting to discuss various work-related issues at the pizzeria.
As the staff meeting concluded, Ball asked the employees whether they had any response to the issues he had raised.
Groves retorted, in front of his co-workers, that Ball could have no idea about what was going on at work since Ball “don’t do [expletive deleted]” while at work.
Ball apparently did not appreciate this remark and fired Groves when Groves finished his shift, noting Groves’ “disrespect and poor attitude.”
Groves wanted to fight back.
He filed an unfair labor practice charge against Ava’s with the National Labor Relations Board. Groves claimed, and the NLRB’s general counsel’s office agreed, that Groves’ comments in the meeting were “protected concerted activity” under the National Labor Relations Act and that Ava’s violated the act by firing Groves for his protected speech.
The act prohibits employers from taking adverse employment action against employees who engage in “protected concerted activity” for their mutual support in work-related matters.
The case went before an NLRB administrative law judge.
In a decision last month, the ALJ cleared Ava’s with regard to Groves’ firing. Bud’s Woodfire Oven d/b/a Ava’s Pizzeria, No. 05-CA-194577 (May 21).
In the ALJ’s view, Groves’ snarky remarks about Ball were designed not to further the interests of Ava’s employees, but rather to undermine Ball’s authority in front of his subordinates.
“It is … difficult to imagine how lashing out at a manager who asks employees for feedback … even begins to lay the foundation for meaningful dialogue about employees’ terms and conditions of employment,” the ALJ wrote.
Groves’ use of foul language also did not impress the ALJ.
On an unrelated issue, the ALJ struck down as illegal an arbitration agreement Ava’s had its employees execute.
The arbitration agreement generally required employees to bring legal actions against the pizzeria in arbitration rather than in court.
The agreement further maintained a carve-out, notifying employees that they could still file charges with government agencies.
However, the NLRB’s general counsel argued and the ALJ agreed, that because the arbitration agreement also specified that workers “cannot obtain any monetary relief or recovery from such a proceeding,” the carve-out was ambiguous or confusing and therefore illegal because NLRB proceedings often involve payouts.
Cross-appeals are expected.
Frank J. Saibert is a partner in the labor and employment practice at Nixon, Peabody LLP. He represents public- and private-sector employers nationwide in labor relations and employment matters. He is past president of the Chicago chapter of the National Human Resources Association and a former Lyons Township committeeman. He can be reached at fjsaibert@nixonpeabody.com.