Pepperjacks: Pay Discussions, a Scheduling Lockout and an Unlawful Discharge

Being sent home without a clear answer about your next shift can leave you unsure whether you still have a job. That uncertainty mattered in Pepperjacks of Annapolis Junction LLC d/b/a Notch 8 Brewery, 375 NLRB No. 65 (2026). After a trainee bartender discussed pay and breaks with coworkers, the employer sent her home, advertised for workers and cut off her scheduling access. The NLRB found an unlawful discharge and rejected the employer’s later job-abandonment explanation.

The employee’s agency report grew from coworker discussions

Rebecca Spitzer worked at Notch 8 Brewery in Maryland. The employer also operated adjoining food and coffee businesses, with employees covering work across locations. Coworkers discussed long hours and inadequate coverage for breaks. Spitzer joined those conversations, discussed possible overtime rights and suggested contacting labor agencies. On May 2, 2023, she contacted the Maryland Department of Labor about the practices.

The Board affirmed that this was protected concerted activity and relied additionally on Cordúa Restaurants, Inc., 368 NLRB No. 43, slip op. 4–5 (2019). Its explanation in Pepperjacks connects the coworker discussions and agency report. The adopted judge’s findings provide the fuller account beginning on the fifth page. The Board was deciding the response to that activity; the employees’ statements about overtime were not themselves an adjudication of the pay calculation.

The employer’s reaction and the scheduling record supported a discharge

On May 4, owner Andrew Granzow confronted Spitzer about her conversations with other employees. He said he had heard she was discussing breaks and overtime and urging coworkers to file cases against him. Spitzer acknowledged the conversations, but did not say she had advised coworkers to file cases. He said he would not tolerate what he called backdoor conversations, then sent her home. That same day the brewery advertised for beertenders. The Board treated the owner’s stated hostility toward the discussions as direct evidence of animus.

The next day, Spitzer asked by text whether she should report for her May 6 shift. After discovering that she could no longer access the scheduling software, she asked whether she had been terminated and requested a written answer. The owner called; she declined the calls because she wanted communication in writing after the prior encounter. Management responded that it did not handle the matter by text. Those details are preserved in the adopted findings in Pepperjacks; neither side’s communication history should be omitted.

The employer later described the separation as job abandonment. The Board rejected that account in light of the combined circumstances: Being sent home, the hiring advertisement, lost scheduling access and the absence of a written response to the status questions. Its analysis begins in Pepperjacks and continues on the next page, where it concludes that Spitzer reasonably believed she had been discharged. The result depended on the record as a whole, rather than a rule that every scheduling error ends employment.

The employer’s later explanations did not establish the same decision would have occurred

The adopted judge applied Wright Line, 251 NLRB 1083 (1980): Protected activity, employer knowledge and hostility supported the initial showing, after which the employer had to establish that it would have taken the same action absent that activity. The framework appears in the adopted analysis in Pepperjacks and continues on the following page.

The employer asserted drinking, improper beer service, theft, missing alcohol certification and abandonment. The record did not substantiate the misconduct explanations. Coworker testimony corroborated Spitzer’s account, she had not been disciplined during employment, and the employer had hired her as an uncertified trainee and had not fired bartenders for lacking that certification. The adopted judge examined those explanations in Pepperjacks, with the abandonment analysis continuing on the next page.

The Board added that the employer first raised the supposed misconduct as termination reasons in its answer to the complaint. It relied on Inter-Disciplinary Advantage, Inc., 349 NLRB 480, 509 (2007), concerning shifting or post hoc explanations. Regulatory and insurance arguments first raised in the posthearing brief were untimely and, the Board explained, would not satisfy the defense burden in any event. Those are the Board’s specific reasons in Pepperjacks, not findings that every later explanation in another case is false.

The operative Board order governs the remedy

The Board ordered an offer of full reinstatement to the former or a substantially equivalent job, make-whole relief for earnings and benefits, and relief for direct or foreseeable pecuniary harms in the manner it specified. It also ordered record correction, notice and other compliance measures. The actual order appears in Pepperjacks. It does not establish that reinstatement occurred or calculate an individual recovery.

The second-page footnote records differing views about the Thryv remedy: Chairman Murphy and Member Mayer applied it for institutional reasons, while Member Prouty continued to endorse it. The attached judge’s older notice also contains a reinstatement-waiver statement, but the Board supplied a new order and notice expressly requiring an offer of reinstatement. Reading the operative Board documents avoids confusing that older text with the ordered relief.

A useful review separates the activity, the employment action and the stated reason

For a worker, preserve what the shared conversations concerned, how management learned of them and what followed. Keep the actual schedule and communications even when they contain facts that require explanation. Our guide to being sent home and losing scheduling access develops that comparison. The California retaliation-complaint guide addresses a different agency process. This Board decision applies federal labor law to a Maryland workplace; the applicable coverage and route in another employment relationship need their own review.