Administrative Law Judge Rules Against Zacatacos in Chicago for Unlawfully Firing Two Employees

In a decision issued on June 23, 2021, Administrative Law Judge Arthur J. Amchan found that Zacatacos, Incorporated, a Chicago-area chain of restaurants, violated Section 8(a)(1) of the National Labor Relations Act by discharging two of its employees for engaging in protected concerted activity.

After briefly closing due to the COVID-19 pandemic, Zacatacos reopened for carry-out business in May 2020. The limited re-opening required reducing employees’ work schedules. The Employer’s manager texted a number of employees their schedules, and two waitresses responded to the group text with their opinion that the schedule was not fair because less senior employees were getting more and better hours than they were.

The manager read the text conversation and invited them to bring any questions they had about the schedule to him. But when the first of the two employees reported to work the next day, the manager told her that because of the “situation” the day before, she no longer worked for the Employer, and directed her to hand in her uniform.

The second employee was not scheduled to work until the following day. But when she arrived, she was told to wait for the manager outside the restaurant. After waiting awhile, the employee went inside and was confronted by the manager, who told the employee that there was no more work for her, shook a copy of the schedule and text messages at her and told her she had been disrespectful.

Considering the evidence, the ALJ found that the two employees’ complaint about the schedule constituted protected concerted activity.

The manager was aware of the activity from having read the texts, and his comments to the two employees clearly demonstrated that his decision to terminate them was a result of his animus against the activity.

The judge recommended an Order requiring Zacatacos to offer reinstatement to the two employees, and to make them whole for any lost wages and other benefits that they suffered because of the unlawful discharges.

“Joining with your coworkers to improve your working conditions is a protected right, even if it happens over text,” said Region 13 Acting Regional Director Daniel Nelson. “I’m pleased that Judge Amchan agreed that this was protected concerted activity and issued appropriate remedies.”

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees, employers, and unions from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year. Region 13 serves areas in Illinois and Indiana from its Regional Office in Chicago.