CASE STUDIES FOR CONCERTED ACTIVITIES

2.1 Case Number One

NLRB v. AMERICA MEDICAL RESPONSE

The question asked in this case was can an employer fire an employee for his/hers social media activity?  

The Nation Labor Relations Board filed an unfair labor practice complaint against the employer. Souza an emergency medical technician was terminated from her position after posting derogatory comments about her supervisor on Facebook. Prior to her post she had a disagreement with her supervisor where she was reprimanded for ill treatment of a client. Later in the day, on Facebook (from her home computer) she complained about her supervisor, calling him “scumbag” and other derogatory names. 
After learning of her comments AMR fired her for violating their Internet/blogging policy that prohibited the “Use of language or action that is inappropriate in the workplace whether racial, sexual, or of a general offensive nature” and “Rude or discourteous behavior to a client or coworker".

Additionally AMR’s blogging and Internet Posting Policy prohibited posting pictures that depicts the company in any way without written approval, a violation of Section 7 rights for it prohibits posting pictures of employees wearing a t-shirt with the company logo while on a picket line. Lastly, the Board ruled that AMR violated Section 8 (a) (1) of the Act by maintaining the blogging and Internet posting and the standard-of-conduct policies that either limited Section 7 activity or employees would reasonably construed that they do.


The agency alleged that their overly broad policies violated Section 7 of the National Labor Relations Act (NLRA), which gives employees the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The NLRB focused on how AMR’s policies interfered with this specific right to engage in “concerted activities. 

In other words, employees must be permitted to discuss the terms and conditions of their employment with co-workers and others, and by terminating Souza for posting comments that drew support from co-workers, AMR had violated the NLRA.

Discussion

It is well established that employees’ “free speech” rights are limited, especially when it comes to speech about employers, their business, and other employees, and this applies both inside and outside the workplace. Furthermore, at- will employers can legally fire their employees at any time and for nearly any reason; unless an employer fires an employee for one of the few, specified illegal reasons, the termination is legal.

In this case, the NLRB simply clarified that these generally permissible policies regulating free speech are not permissible if they interfere with employees’ rights to organize labor unions and engage in concerted activities. It seems like a tough call to say that nasty comments, calling one’s boss a “dick” and “scumbag,” are protected.

However, Souza’s case is stronger than most cases of employee disparagement. Here, not only did other co-workers post their support on the issue, but the reason she posted them in the first place was because she was denied Union representation. These seem to be key factors that led the NLRB to view Souza’s comments as protected “concerted activities.” Thus AMR was not correct in disciplining Souza.

In late January – merely a couple months after the complaint was filed – AMR agreed to settle. The company promised to grant employees’ requests for Union representation, and more importantly, to revise its Internet and social media policies.

Employers can limit free speech on social media sites just as much as they can limit free speech in person, and employees can engage in protected “concerted activities” online just as much as they can do so in person.

Therefore the lesson learnt from this case is that if you wouldn’t say it in person, don’t say it on Facebook. Or at least privatize your page.

Although “concerted activities” generally refer to two or more employees acting together to address an employment concern, these may also refer to a single employee’s action, on behalf of others, that is a reasonable form of protest.

2.2 Case Number Two

NLRB v. DESIGN TECH GROUP LLC

In Design Technology Group, LLC et al., Case 20-CA-35511 (Apr. 27, 2012), the Administrative Law Judge found that Bettie Page engaged in unfair labor practices when it discharged three employees who engaged in protected concerted activity through discussions on Facebook. The decision ordered Bettie Page to reinstate the employees to their former jobs and pay back wages.

Facts and Background of the Case

Bettie Page opened a store in the Haight Ashbury district of San Francisco in July 2011. Shortly after opening, several employees felt that the store manager was not managing the store or its personnel very well. Among other things, the employees were concerned that the store was closing later than local street people harassed other stores in the neighborhood and that closing employees. The employees brought this concern to the store manager, the owner, and the company’s human resources consultant. When the store manager was out of town, two employees closed the store an hour early with permission from the storeowner. When the store manager heard of the early closing, she angrily scolded one of the closing employees over the phone. These employees took to Facebook to air their frustrations with the store manager:

[Employee 1]: needs a new job. I’m physically and mentally sickened.

[Employee 2]: It’s pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so. I’m am (sic) unbelievably stressed out and I can’t believe NO ONE s doing anything about it! The way she treats us in NOT okay but no one cares because every time we try to solve conflicts NOTHING GETS DONE!!

[Employee 1]: Bettie page would roll over in her grave.

[Employee 2]: She already is girl!

[Employee 1]: 800 miles away yet she’s still continues our lives miserable. Phenomenal!

[Employee 2]: And no one’s doing anything about it! Big surprise!

[Employee 3]: “Bettie page would roll over in her grave.” I’ve been thinking the same thing for quite some time.

[Employee 1]: hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will all the crap that’s going on that’s in violation see you tomorrow surprise you!

The company learned of the posts. It terminated the two employees initially involved (Employees 1 and 2, above) just six days after the posts were made.  The other employee involved in the posts

(Employee 3, above) was terminated about a month later. The decision concluded that the Facebook comments were protected concerted activity because the postings were a continuation of the employees’ efforts to raise concerns about working late in an unsafe neighborhood. Section 7 of the National Labor Relations Act protects concerted employee activity, regardless of whether a union represents the employees.

Although Bettie Page argued that it had several legitimate reasons for discharging the employees, the decision held that the employer failed to prove it would have fired them even if they had not engaged in protected concerted activity. As a remedy for the discharge, the ruling ordered Bettie Page to offer the discharged employees back pay and full reinstatement to their former jobs (or, if those jobs no longer exist, to substantially equivalent positions). 

The facts that were brought forward in the decision made it clear that relations between the Bettie Page store manager and the discharged employees were heavily strained, so the remedy of reinstatement is particularly noteworthy.

This case therefore illustrates that all employers—unionized and nonunionized—should carefully consider the implications before disciplining employees for comments made in social media. In addition to providing back pay to wrongfully terminated employees, employers could be forced to hire these employees back into the workforce, regardless of the strained relations between them and regardless of whether there are open positions available.

The other fact of this case further illustrates how easily complaints and negative comments posted by employees can become protected. If an employer is aware of the comments and takes adverse action based on them, the employer could face an unfair labor practice charge or a retaliation claim. In addition to protecting concerted activity, the NLRA protects employees who share information about their wages with other employees and third parties. 

SIRIKWA YASINTA THADEY