I’ve posted about the NLRB and social media issues (and employee rants) previously here . So what else could there be to say about the subject? Has anything changed? Well, last month a Circuit Court issued a decision regarding union workers posting negative flyers near the employer’s place of business. Also, since Noel Canning which I posted about here, there was at least one mostly –or at least somewhat– pro-employer ruling. We know from past experience that the NLRB is ever active, so it’s always a good idea to keep an eye out and know what’s going on. So let’s look at these cases — and maybe one or two others, after the jump…
Let’s look first at MikLin Enterprises, Inc. d/b/a Jimmy John’s v. NLRB. MikLin Enterprises operated a Jimmy John’s in the Minneapolis-St. Paul area. The local union requested paid sick days for the employees. MikLin refused. The union printed flyers that heavily implied that customers who eat food from Jimmy John’s run the risk of getting sick (presumably because there are sick employees handling and breathing on their food). The flyer further indicated that workers do not get paid sick days and told people to call in to MikLin and demand that it give its workers paid sick days. The union posted this flyer in and near the restaurant. MikLin traced these actions to 6 employees and fired them. The Union filed an NLRB charge and the Administrative Law Judge ruled that the firings were in retaliation for union activity and other NLRA-protected activity and order the employees’ reinstatement. The Board affirmed the ALJ’s ruling 2-1. MikLin then appealed to the Eighth Circuit Court of Appeals, citing the flyer’s “malicious and false nature” in that it suggested that employees could not call out but had to work while sick.
The Eighth Circuit affirmed the NLRB decision on March 25, 2016. The Court felt that the NLRB was “well within its rights” in finding that the activities in question were within the NLRA’s protections. Specifically, the Court reasoned that employees merely suggested the “realistic potential” for illness, and that the flyer was “not so disloyal as to lose the protections of the NLRA”.
Now for a Facebook case, Pier Sixty, LLC. and Hernan Perez (“Pier Sixty”), decided March 31, 2015. During a rest break an employee posted the following comment about his supervisor on his personal Facebook page: ” Bob is such a NASTY MOTHER F@#*ER don’t know how to talk to people!!!!!! F@#k his mother and his entire f@#*ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” Someone reported the comment to the employee’s supervisor. The company investigated and then fired the employee for violating its policy against vulgar and offensive language. The employee filed an NLRB charge. The case focused on only on whether the behavior itself was deemed “protected”, but also whether the company consistently enforced its policy on vulgar and offensive language. The Board found that it did not, that in fact many other employees made similar comments and suffered no consequences at all. It therefore found the termination wrongful because: a) it was not consistent with the company’s policies against such language; b) the employee made the comments two days before a union vote and in the context of union activities; and c) the workers wanted to unionize in part because of rude and demeaning treatment they received from management. The Board therefore reasoned that the company could not find a non-union related reason for terminating the employee.
Now, don’t get too discouraged. Here’s a case that holds some promise: Fresenius USA Manufacturing, Inc., NLRB Case 02-CA-039518, decided on June 24, 2015. The NLRB actually upheld termination of an employee who anonymously directed the following three comments toward his female co-workers: (1) “Warehouse workers, RIP”; (2) “Dear P#@!ies, Please Read!”; and (3) “Hey cat food lovers, how’s your income doing?” which a few female co-workers found harassing and threatening and therefore reported them to management.
The employer investigated and the employee lied and denied authoring the comments. When the company discovered that in fact the employee had written those comments, it fired him both for the deception and for violation of its policies on vulgar and threatening language. The NLRB focused on the fact that another employee made a facially valid complaint about feeling threatened by the comments, in particular, “Warehouse workers RIP”, and acknowledged that the company had a legitimate interest in investigating the conduct. The NLRB further found that the company tailored its investigation to the complained of behavior and excluded union organizing activities and any references thereto. Finally, the NLRB found that the company had a record of consistently applying its policy of terminating employees who lie during investigations. The company was therefore able to show that it terminated the employee consistent with its policy and not for his union activities–or any other NLRA-protected activity.
Now, this case has another interesting twist: Previously the NLRB decided this case and ruled against the employer. The case initially was decided before the Supreme Court decided Noel Canning, which effectively invalidated that ruling, resulting in a remand to the Board for re-consideration. In the meantime the first decision drew scathing criticism from employer’s attorneys who said that the NLRB’s original ruling would force employers choice between complying with Title VII or Section 7 of the NLRA. (I have to believe that on remand the NLRB considered that point.)
The good news is that we now have the following take away’s that can be of some help:
- Enforce your policies consistently. This is perhaps the most important–albeit difficult– thing you can do. Consistent enforcement can legitimize disciplinary actions you take under your policies. Conversely, inconsistent enforcement can trigger claims of discrimination or unfair treatment –not only in charges under the NLRA but in Title VII and similar claims.
- Be very careful when disciplining for disparaging comments. Ascertain whether the statements are closely tied to pro-union activity, or comments about wages, workplace safety, working conditions or any other issues or activity that may be protected under NLRA Section 7 — or other applicable federal or state employment laws.
- As always — consult with in-house or competent employment counsel. No post is every complete without this point, is it?
OK, that’s all for now. Join The EmpLAWyerologist next week when we look at the issue of state and local sick leave laws — unless another Supreme Court decision comes our way! Bye for now.
Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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