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Does the NLRA Give Employees a Right To Badmouth Employers On-Line? So Far, No, but Change is in the Air!

As published in the May 16, 2011 Daily Labor Report

A complaint issued last October by Region 34 (Hartford, Conn.) of the National Labor Relations Board (NLRB) generated a great deal of controversy over what restraints the NLRB places on employers seeking to limit employees’ disparaging Internet posts.  The complaint, which recently settled, involved whether company policies prohibiting disparaging online posts are in violation of the National Labor Relations Act (NLRA). 

The NLRB published an advice memorandum in 2009 that gave employers a significant amount of latitude to regulate employees’ online activities.  However, the recent complaint and the subsequent commentary by NLRB officials raise concerns that the NLRB, now Democratically controlled, seeks to reduce that latitude.

The Facts of a “Facebook Firing”

Region 34’s complaint stemmed from the firing of Dawnmarie Souza by American Medical Response (AMR) due to her posts on Facebook.  In those posts, she criticized her supervisor, referring to him as a “17” (AMR’s code for a psychiatric patient), a “dick” and a “scumbag as usual.”  Many of Ms. Souza’s Facebook-friends, including co-workers, posted supportive comments onto her posts, drawing further statements by Ms. Souza. 

AMR’s “Blogging and Internet Posting Policy” prohibited employees from “making disparaging, discriminatory or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors.”

Ms. Souza filed an unfair labor practice charge against AMR.  Region 34 issued a complaint once it concluded there was reason to believe the NLRA has been violated.  In this case, the complaint alleged AMR’s policy was “interfering with, restraining and coercing employees in the exercise of the rights guaranteed in” Section 7 of the NLRA.  It should be noted that a complaint is not a “ruling” of any sort, but merely a preliminary finding that AMR may have violated the NLRA.

Key NLRA Provision

At the heart of this controversy is an NLRA provision guaranteeing all employees (unionized and union-free) the right to engage in protected, concerted activities.  Such activities are “protected” if they pertain to self-organizing, joining or assisting a union, or for “other mutual aid or protection” of employees.  For example, activity for “mutual aid or protection” includes complaining about employees’ terms and conditions of employment.  While “concerted” activities generally involve several employees, the NLRB and courts have construed “concerted activities” to include a single employee’s activities if they are on behalf of others.  Thus, one employee’s Facebook post about how “this company treats us like dirt” is likely protected, concerted activity.

NLRB’s Current Position

While the position embodied in the complaint was clearly hostile to social media policies prohibiting company-disparaging communications, this position was only that of one regional director, not the entire NLRB.  In fact, the NLRB’s position was expressed in a 2009 “advice memorandum” and was rather contrary.  In that advice memorandum, the board’s assistant general counsel was asked whether Sears’ social media policy violated the NLRA by restricting employees’ ability to engage in protected, concerted activity.  That policy stated:

Prohibited Subjects

In order to maintain the Company’s reputation and legal standing, the following subjects may not be discussed by associates in any form of social media:

  • Company confidential or proprietary information
  • Confidential or proprietary information of clients, partners, vendors, and suppliers
  • Embargoed information such as launch dates, release dates, and pending reorganizations
  • Company intellectual property such as drawings, designs, software, ideas and innovation
  • Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects
  • Explicit sexual references
  • Reference to illegal drugs
  • Obscenity or profanity
  • Disparagement of any race, religion, gender, sexual orientation, disability or national origin

(Emphasis added.) Although the emphasized language is very similar to the language in the AMR case, the policy was upheld.   

In the advice memorandum, the assistant general counsel examined the relevant binding NLRB decisions and concluded:

“If [a policy] does not explicitly restrict protected activities, it will only violate [the NLRA] upon a showing that: (1) employees would reasonably construe the language to prohibit [protected, concerted activity]; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of [protected concerted] Activity.”

Applying that analysis to Sears’ policy, the advice memorandum first observed that the policy does not explicitly restrict protected activities. 

Next, the advice memorandum opined that Sears did not issue the policy in response to union activity or use it to restrict an employee’s NLRA rights. 

Lastly, the advice memorandum concluded Sears’ policy “cannot reasonably be interpreted to prohibit . . . protected activity” because although the prohibition against disparagement of the company was broadly worded, it was contained in a list of several prohibitions which targeted clearly non-protected activity.  

Accordingly, an employee reading the nondisparagement language in the context of the surrounding prohibitions could not reasonable conclude the policy (as a whole) prohibited protected, concerted activity.  Thus, context is key. 

AMR Case and the Future of Employers’ Rights

Since a private settlement was reached in the AMR case, it did not result in any legal changes, and the advice memorandum remains unchanged.  However, the advice memorandum was written under the supervision of a Republican general counsel.  While the associate general counsel who authored it (Barry J. Kearney) still heads the Division of Advice, he now works under a Democratic acting general counsel, Lafe Solomon. 

In an interview shortly after the complaint was issued, Mr. Solomon described the AMR case as “a fairly straightforward case under the National Labor Relations Act – whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”  

While Mr. Solomon’s stance (as the NLRB’s chief prosecutor) is not surprising, it likely resembles the political stance of the NLRB’s Democratic majority.  Incidentally, a new advice memorandum was issued on April 21, 2011, upholding a Twitter-related discharge.  However, this advice memorandum did not change anything as the employee’s offensive posts did not involve protected concerted activity.

Although the AMR case settled, similar cases exist.  On Feb. 4, three days before the AMR case settled, the Service Employees International Union (SEIU) filed an unfair labor practice charge in the same regional office against a Connecticut bus company.  Among other things, the SEIU claims the employer violated the NLRA by “maintaining and enforcing” a policy against the “use of electronic communication and/or social media in a manner that might target, offend, disparage, or harm customers, passengers or employees.”  While nothing has happened yet, this is a great opportunity for Region 34 to resurrect this issue. 

Meanwhile, on the West Coast, on April 27,  the NLRB’s San Francisco Regional Office approved a settlement in a case involving the discharge of an employee who posted complaints on Facebook regarding her working conditions.  According to the NLRB’s announcement, the employer was required (as part of the settlement) to “post a notice … for 60 days stating that employees have the right to post comments about terms and conditions of employment on their social media pages, and that they will not be terminated ….”

With employees and unions paying closer attention to social media policies, employers and their counsel should take great care in drafting and enforcing policies limiting employees’ online activities. 

In light of the recent changes at the NLRB, both in terms of the new general counsel and the Democratic board majority, more “Facebook firing” cases (involving unionized and non-unionized employees) are likely to result in more unfair labor practice charges before the NLRB.  Employers facing such Charges can also expect much more scrutiny given to their policies and practices.  Thus, while a possible position-changing decision by the NLRB is still quite far away, the time for employers to take action is now.

Adapted with permission from Daily Labor Report, No. 94, (May 16, 2011).  Copyright 2011 The Bureau of National Affairs, Inc. (800-372-1033) www.bna.com.