Facebook and NLRB: Still Making Good Blog Fodder

Butler Medical Transport had a social media policy that provided, “I will refrain from using social networking sites which could discredit Butler Medical Transport or damage its image.” After being terminated, an employee posted on Facebook that she believed her termination was unjust. A still-employed employee responded, “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court… You could contact the labor board too.” The employer then fired that employee for making those comments.

The National Labor Relations Board ruled that the discharge violated the Act because 1) the exchange was concerted (i.e. involved group activity); 2) the comments were made for the mutual aid and protection of workers; and 3) the discharge was made pursuant to the unlawful social media policy.

I say this a lot, thankfully Member Miscimarra dissented. He found the Facebook comments were not concerted activity and thus not protected by the National Labor Relations Board. He continued, by opining that the Board’s approach to social media cases has yielded “absurd” results. Circuit Courts agree here and here.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

Even When Company and Union Agree, NLRB Rules in Favor of Employee

A hospital desperately sought to hire some to fill the hard-to-fill position of part-time boiler operator. Despite candidate Legley being difficult to work with during the interview process, he was willing to be a part-time boiler operator, so the hospital hired him. I’m sure many of you have similarly undesirable jobs where you hire the first person willing to accept it, even if your better judgment tells you not to.

During orientation, Legley attended a meeting with the SEIU union that represented employees of the hospital. He became belligerent during this meeting and protested about having to become a union member in order to be employed in the position. One of the SEIU attendants at that meeting felt intimidated by Legley.

The hospital decided to terminate Legley shortly after orientation for “inappropriate disrespectful behavior.” The union agreed. Legley filed an unfair labor practice charge against both the hospital and union alleging he was fired for protesting mandatory union membership.

After trial, an administrative law judge ruled that both the hospital and union violated the National Labor Relations Act. On appeal, the NLRB rubber stamped that decision. On further appeal, the Circuit Court reversed the NLRB and criticized its decisionmaking – a common theme these days.

The appeals court faulted the Board or failing to properly interpret the hearing evidence. It noted that the Board “may not distort the fair import of the record by ignoring whole segments of uncontroverted evidence. Moreover, when the board purports to be engaged in simple fact-finding…it is not free to prescribe what inferences from the evidence it will accept and reject, but must draw all those inferences that the evidence fairly demands.” Per the court, “Because we believe that the Board had all of the evidence and arguments it needed to articulate a contrary position and, if it actually intended to take such a position, neglected to do so because of its failure to consider the record as a whole, we decline the dissent’s invitation to remand to the NLRB for reconsideration.”

Ouch.  Circuit Courts appear to have no more tolerance for the NLRB’s results-oriented decisions any more. For another example, click here.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

OK to Fire HR Generalist for Threatening to Unionize Workers

A company was growing and wanted to hire someone who could ensure that it remained compliant with workplace laws, so it hired an HR Generalist. After auditing personnel files and payroll, the HR Generalist drafted a letter that said, among other things:

  • He had major concerns about the workplace;
  • One employee was racist;
  • One employee shouldn’t play uncensored music;
  • The company’s paid time off policy was sub-par because employees were making less than the average demographic salary;
  • He and other employees were misclassified as exempt under the Fair Labor Standards Act; and
  • One manager was age- and sex-biased

The HR Generalist concluded by saying he has and “will continue to give serious thought in regards to contacting the NLRB and attempting to organize and eventually form a union.” The HR Generalist did not discuss any of his concerns with other employees. He was fired after his supervisor read the letter. He filed a charge with the NLRB, and, of course, the NLRB issued a Complaint against the Employer.

The NLRB believed that terminating the HR Generalist was a preemptive strike to prevent him from engaging in statutorily protected conduct. Thankfully, the Administrative Law Judge rejected this theory since the HR Generalist never discussed any of the concerns raised in his letter with other employees. Per the ALJ, the HR Generalist “was interested only in protecting his own job by threatening to initiate a variety of legal actions, and that he had no interest in promoting, supporting, or assisting other employees in seeking to address any of those issues.

On appeal, a unanimous NLRB upheld the ALJ’s decision. Notably, the NLRB said the HR Generalist and the Company shared an expectation that he would bring non-compliance issues to the company and together they could find solutions to the problems. The HR Generalist betrayed the Company by pursuing a course of action inconsistent with the purpose for which he was hired.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com. 

Are Employees “Virtually Termination Proof” for Social Media Postings?

An employee was upset that the retail store she worked at stayed opened as late as it did because the store was located in an unsafe neighborhood. After the store owner did not change the hours of operation, the disgruntled employee posted on Facebook remarks about her “immature” manager and that she would bring a labor rights book to work with her the next day. She was terminated for the post.

This is not a routine “employee fired for social media post in violation of Section 7 rights” case, though. Here, the employee’s celebratory Facebook posts after being terminated included: “Muhahahahahaha!!! So they’ve fallen into my clutches” leading one to believe she purposefully trapped the company into committing an unfair labor practice charge when it terminated her employment. According to the Board, the post was protected. According to the National Federation of Independent Businesses, which filed an amicus brief in the case, the Board’s decision renders employees “virtually termination-proof” once they complain or comment online about anything work-related, regardless of the motivation for the posting. I don’t think employees are termination-proof, but it sure does appear that way.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Are Employees “Virtually Termination Proof” for Social Media Postings?

An employee was upset that the retail store she worked at stayed opened as late as it did because the store was located in an unsafe neighborhood. After the store owner did not change the hours of operation, the disgruntled employee posted on Facebook remarks about her “immature” manager and that she would bring a labor rights book to work with her the next day. She was terminated for the post.

This is not a routine “employee fired for social media post in violation of Section 7 rights” case, though. Here, the employee’s celebratory Facebook posts after being terminated included: “Muhahahahahaha!!! So they’ve fallen into my clutches” leading one to believe she purposefully trapped the company into committing an unfair labor practice charge when it terminated her employment. According to the Board, the post was protected. According to the National Federation of Independent Businesses, which filed an amicus brief in the case, the Board’s decision renders employees “virtually termination-proof” once they complain or comment online about anything work-related, regardless of the motivation for the posting. I don’t think employees are termination-proof, but it sure does appear that way.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NLRB Reinstates Fired Employee Because Employee Denied Union Rep before Drug Test

A manager noticed that a delivery driver “reeked of the smell of marijuana.” The manager informed the employee that he would assign him a route for that day only if he agreed to take a drug test. The employee called the union shop steward, but it was the steward’s day off, so he could not accompany the employee to the drug test. The manager told the employee that if he failed to take the test, he would be treated as if he had tested positive, which could result in termination. The employee never took the test, and the Company terminated him later that day.

A well-known U.S. Supreme Court decision NLRB v. Weingarten provides that an employee has a statutory right to request the presence of a union representative during an investigatory interview if the employee reasonably believes the interview may result in disciplinary action. Here, the Board found that the employee had been presented with an ultimatum of taking the drug test immediately without representation or being treated as if he had tested positive and thus face termination.

The Board explained that Weingarten also addressed the physical presence of a union representative to assist an employee. Because the Company was concerned that the employee was under the influence of marijuana based on the employee’s appearance and odor, the Board reasoned that the physical presence of the union representative was necessary so that the representative could independently observe the employee’s condition and potentially contest the grounds for the company’s suspicions.

The Board ultimately concluded that the employee’s discharge was inexplicably linked to his assertion of Weingarten’s rights because he refused to take the test without having his union representative present. The Board ordered reinstatement with back pay. If you’re confused about this outcome, I was too, until I remembered some of the more egregious head-scratching decisions rendered by the current NLRB.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Employee Warning Coworker of Impending Termination is Protected Concerted Activity

A non-supervisory parts inspector noticed that a fellow employee, a machine operator, had not shown up to work recently. The inspector asked the plant manager about the machine operator, and the plant manager responded that the machine operator “doesn’t work here anymore.” The inspector then used his cell phone to call the operator, who explained that he had been sick. The inspector informed the operator that he did not think he had a job with the Company anymore. The operator immediately called the Company and told the plant manager that he was upset to learn about his firing from another employee. Based on this report, the Company interviewed the inspector and then fired him for “misconduct.” The inspector filed an unfair labor practice charge with the National Labor Relations Board over his termination.

The administrative law judge (ALJ) explained that “the Board repeatedly has held that an employee’s warning to another employee that the latter’s job is at risk constitutes protected, concerted activity.” Accordingly, the ALJ found that the call from the inspector to the operator was protected concerted activity under the National Labor Relations Act. The ALJ ordered the inspector be reinstated and made whole for any loss of pay or benefits caused by his termination.

This case demonstrates the wide range of activity that the NLRA protects as concerted activity. Of course, this case would never have seen the light of day had the plant manager not prematurely shared an employment decision with the inspector before notifying the operator of his termination. As such, this case is a good reminder of not only the lengths the Board will go to protect activity but also that loose lips sink ships and supervisors should not universally discuss personnel matters.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.