Tweets not the whole story behind publicized NLRB Chipotle ruling

By Karen Kidd | Apr 6, 2016

PHILADELPHIA – A fired Philadelphia-area Chipotle employee who'd been forced to delete tweets from his personal Twitter account must be offered re-employment and receive back pay, thanks to a National Labor Relations Board administrative Judge's ruling.

However, the tweets have gotten far more attention than they should, especially because they were not why the employee was fired, says Alan Brunswick, a partner at Manatt, Phelps & Phillips in Los Angeles.

"He was terminated for starting a petition drive about breaks among his fellow employees," Brunswick said. "The tweets are not why he was fired, but they are what has grabbed everyone's attention."

NLRB Administrative Judge Susan Flynn ruled in favor of James Kennedy, stating that Chipotle’s former social media policy violated federal labor laws. Specifically, Flynn found Chipotle violated Section 8(a)(1) of the National Labor Relations Act when it maintained an unlawful social media code of conduct.

Under the ruling, Kennedy - now 38, living in Upper Darby, working for American Airlines and a member of the company's union - is entitled to receive his old job with Chipotle back and must receive back pay.

Kennedy was hired as a crew member at the Havertown Chipotle in August of 2014. He was responsible for food preparation, serving customers, washing dishes, and restocking supplies. Within months, Kennedy was posting about his job and the working conditions of Chipotle employees under his Twitter name "McMac."

In late January 2015, Kennedy tweeted a news article about hourly workers having to work snow days when public transportation was shut down. That tweet addressed Chipotle's communications director, Chris Arnold, stating, “Snow day for ‘top performers’ Chris Arnold?”

Soon Kennedy was replying to tweets posted by customers. When one such customer tweeted “Free chipotle is the best thanks,” Kennedy tweeted “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?”

In reply to a customer tweet about guacamole, Kennedy replied “it’s extra not like #Qdoba, enjoy the extra $2" in reference to the restaurant chain Qdoba which, unlike Chipotle, does not charge extra for guacamole.

Kennedy's supervisors soon got wind of his Twitter activities and confronted him about it, showing him Chipotle's social media code that turned out to be outdated. Havertown Chipotle's general manager, Jennifer Cruz, asked Kennedy to delete his tweets, which Kennedy agreed to do.

"While Clark asked Kennedy to remove the tweets and did not direct him to do so, under the circumstances, it amounts to an order from a higher level manager, and the Respondent [Chipotle] does not contend otherwise," Flynn said in her ruling.

For this reason, Flynn found Chipotle violated Section 8(a)(1) of the National Labor Relations Act.

It might not have made it to the NLRB if Kennedy's supervisors had not taken a dim view to a petition he drafted Feb. 14, 2015, about employee breaks. "We want to work with management to create a more positive workplace," Kennedy wrote in his petition. "We hope this allows us to start a genuine dialogue without fear of reprisal."

Kennedy discussed the petition with other employees and solicited their signatures. His involvement of his fellow employees, rather than approaching management on his own behalf, is probably one reason why Kennedy ultimately prevailed with the NLRB, Brunswick said.

"That's what made it protected activity," Brunswick said.

It also is what put Chipotle in violation of Section 7 of the National Labor Relations Act, according to Flynn’s ruling.

“That’s the hook that the NLRB has been using to go after nonunion employers,” Brunswick said.

Cruz fired Kennedy after he refused to stop circulating the petition but both testified that it was unclear to either whether he was fired.

"Cruz testified that when she did decide to fire Kennedy, it was not because of the petition or because he discussed it with employees while they were on duty, but because of his demeanor during their conversation," the ruling said.

Later, when it came time to put through Kennedy's firing on Chipotle's computer system, Cruz testified her options were limited.

"Cruz testified that there are limited options to select from as reasons for termination in the computer program, and she chose insubordination in order to reflect that he was fired rather than quit", the ruling said.

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