2012 01 24 Report of the Acting General Counsel concerning social media cases

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http://www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report

For a curated summary relating to the NLRB Costco ruling visit:

http://storify.com/krishnade/costco-national-labor-relations-board-ruling-affec

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2012 01 24 Report of the Acting General Counsel concerning social media cases

  1. 1. OFFICE OF THE GENERAL COUNSEL Division of Operations-ManagementMEMORANDUM OM 12-31 January 24, 2012To: All Regional Directors, Officers-in-Charge, and Resident OfficersFrom: Anne Purcell, Associate General CounselSubject: Report of the Acting General Counsel Concerning Social Media Cases Attached is an updated report from the Acting GeneralCounsel concerning social media cases within the last year. /s/ A.P.Attachmentcc: NLRBURelease to the Public MEMORANDUM OM 12-31
  2. 2. NATIONAL LABOR RELATIONS BOARDOFFICE OF THE GENERAL COUNSELWASHINGTON, D.C. 20570 REPORT OF THE GENERAL COUNSEL On August 18, 2011, I issued a report presenting casedevelopments arising in the context of today’s socialmedia. As I noted in that report, social media includevarious online technology tools that enable people tocommunicate easily via the internet to share informationand resources. These tools can encompass text, audio,video, images, podcasts, and other multimediacommunications. Cases concerning the protected and/orconcerted nature of employees’ social media postings andthe lawfulness of employers’ social media policies andrules continue to be presented to the Regional Offices andare then submitted to the Division of Advice in Washingtonfor my consideration. In addition, these issues and theirtreatment by the NLRB continue to be a “hot topic” amongpractitioners, human resource professionals, the media, andthe public. Accordingly, I am issuing this second reporton fourteen recent cases that present emerging issues inthe context of social media. I hope that this report will continue to provideguidance as this area of the law develops. __________/s/______________ Lafe E. Solomon Acting General Counsel
  3. 3. Discharge for Facebook Comments and For Violation of Non-Disparagement Rule Was Unlawful In this case, we addressed the lawfulness of theEmployer’s rule prohibiting employees from “disparaging”the Employer in any media. We also looked at theEmployer’s termination of the Charging Party for postingcomments critical of the Employer on Facebook. We foundthat the rule was unlawful and that the Employer violatedthe Act when it terminated the Charging Party for herprotected concerted Facebook postings and pursuant to therule. The Employer is a collections agency. The ChargingParty worked in the inbound calls group at one of theEmployer’s call centers. This group operates differentlyfrom the other client groups, which use a calling systemthat automatically dials the number of a debtor from a pre-programmed list. The employees then leave a voicemail, orif they reach the correct person, they attempt to convincethe person to make the payments owed. The inbound callsgroup is responsible for answering all returning phonecalls from debtors. According to the Charging Party,employees in the inbound group are able to collect moremoney than employees who make outbound calls because thosein the inbound group connect with a live person andbecause, for the most part, individuals who return callsare interested in repaying their debts. Employees are paid an hourly rate and bonuses based onthe total amount of payments they secure from debtors.Employees in the inbound calls group earn more, on thewhole, than employees in the outbound sections. TheCharging Party worked in the inbound calls group forapproximately seven years. She asserted that she was thesecond best performing employee in the group based on thevolume of payments received, and thus that she earned asignificant portion of compensation in bonuses. On October 7, 2010, the Charging Party’s supervisorsinformed her that due to low call volume in the inboundcalls group, she was being moved to one of the outboundcalls groups. The following day, the Charging Partyapproached her supervisor and expressed her frustrationwith the transfer decision, arguing that given her highperformance level, it did not make sense to transfer her. After arriving home, the Charging Party posted astatus update on her Facebook page. Using expletives, shestated the Employer had messed up and that she was donewith being a good employee. 3
  4. 4. The Charging Party was Facebook “friends” withapproximately 10 coworkers, including her directsupervisor. One coworker indicated she was “right behind”the Charging Party and was also angry. Another coworkermade a similar comment. Several former employees alsoposted, with one of them commenting that only bad behaviorgets rewarded, and that honesty, integrity, and commitmentare a foreign language to them. This coworker also wrotethat the Employer would rather pay the $9 an hour peopleand get rid of higher paid, smarter people. The ChargingParty responded and indicated that the Employer could keepthe $9 an hour people who would get the Employer sued.Another former employee called for a class action, statingthat there were enough smart people to get them sued. The Charging Party returned to work on October 12. Atthe end of the day, she was told that she was beingterminated due to her comments on Facebook, and theEmployer showed her a copy of her Facebook wall fromOctober 8. An employer violates Section 8(a)(1) through themaintenance of a work rule if that rule “would reasonablytend to chill employees in the exercise of their Section 7rights.” Lafayette Park Hotel, 326 NLRB 824, 825 (1998),enfd. 203 F.3d 52 (D.C. Cir. 1999). The Board uses a two-step inquiry to determine if a work rule would have such aneffect. Lutheran Heritage Village–Livonia, 343 NLRB 646,647 (2004). First, a rule is clearly unlawful if itexplicitly restricts Section 7 protected activities. Ifthe rule does not explicitly restrict protected activities,it will only violate Section 8(a)(1) upon a showingthat:(1) employees would reasonably construe the languageto prohibit Section 7 activity; (2) the rule waspromulgated in response to union activity; or (3) the rulehas been applied to restrict the exercise of Section 7rights. The Employer’s rule prohibited “[m]aking disparagingcomments about the company through any media, includingonline blogs, other electronic media or through the media.”We concluded that this rule was unlawful because it wouldreasonably be construed to restrict Section 7 activity,such as statements that the Employer is, for example, nottreating employees fairly or paying them sufficiently.Further, the rule contained no limiting language that wouldclarify to employees that the rule does not restrictSection 7 rights. We next considered the employer’s discharge of theCharging Party. In the Meyers cases, the Board explainedthat an activity is concerted when an employee acts “withor on the authority of other employees and not solely byand on behalf of the employee himself.” Meyers Industries 4
  5. 5. (Meyers I), 268 NLRB 493, 497 (1984), revd. sub nom. Prillv. NLRB, 755 F.2d 941 (D.C. Cir. 1985),cert. denied 474U.S. 948 (1985), on remand Meyers Industries (Meyers II),281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).The definition of concerted activity “encompasses thosecircumstances where individual employees seek to initiateor to induce or to prepare for group action.” Meyers II,281 NLRB at 887. The Charging Party here initiated the Facebookdiscussion because the Employer transferred her to a lesslucrative position. In response, coworkers and formercoworkers responded. Some of the comments echoed theCharging Party’s frustrations with the Employer’s treatmentof employees, and one former coworker suggested takingconcerted activity through the filing of a class actionlawsuit. Thus, the Charging Party’s initial Facebookstatement, and the discussion it generated, clearlyinvolved complaints about working conditions and theEmployer’s treatment of its employees and clearly fellwithin the Board’s definition of concerted activity, whichencompasses employee initiation of group action through thediscussion of complaints with fellow employees. We also concluded that the Employer unlawfullyterminated the Charging Party in response to her protectedactivity. Here, as an initial matter, there is no disputethat the Employer knew about the Charging Party’s Facebookstatements and that it terminated the Charging Party inresponse to those statements because the Employerspecifically cited them to the Charging Party as the reasonfor her discharge. Further, the evidence supports theconclusion that the Employer discharged the Charging Partyspecifically as a result of the protected nature of herposts, i.e., because they were fomenting additionaldiscussion among employees about workplace problems. Wefound that the Employer unlawfully terminated the ChargingParty in retaliation for her protected future concertedactivity. Finally, we concluded that the Employer’s discharge ofthe Charging Party also violated Section 8(a)(1) because itwas made pursuant to its unlawfully overbroad non-disparagement rule. The Board recently held that“discipline imposed pursuant to an unlawfully overbroadrule violates the Act in those situations in which anemployee violated the rule by (1) engaging in protectedconduct or (2) engaging in conduct that otherwiseimplicates the concerns underlying Section 7 of the Act.”The Continental Group, Inc., 357 NLRB No. 39, slip op. at 4(2011). An employer will not be liable for disciplineimposed pursuant to an overbroad rule if it can establishthat the employee’s conduct actually interfered with the 5
  6. 6. employee’s own work or that of other employees or otherwiseactually interfered with the employer’s operations, andthat the interference was the reason for the discipline.Here, the evidence demonstrates that the Employerdischarged the Charging Party pursuant to its unlawfullyoverbroad rule. Finally, we found no evidence that theCharging Party’s conduct interfered with her work or thatof other employees. Discharge for Facebook Comments Was Lawful, But Social Media Policy and No-Solicitation Rule Were Overly Broad In another case, we addressed the Employer’s dischargeof the Charging Party for her Facebook comments, and theEmployer’s social media policy and its no-solicitationrule. We concluded that the discharge did not violate theAct because the Charging Party was not engaged in concertedactivity. We found, however, that the Employer’s socialmedia policy and no-solicitation rule were unlawful. The employer operates a chain of home improvementstores. On September 1, 2010, in response to an incidentwhere her supervisor reprimanded her in front of theRegional Manager for failing to perform a task that she hadnever been instructed to perform, the Charging Party usedher cell phone during her lunch break to update herFacebook status with a comment that consisted of anexpletive and the name of the Employer’s store. Fourindividuals, including one of her coworkers, “liked” thatstatus, and two other individuals commented on that status. About 30 minutes later, the Charging Party postedagain, this time commenting that the employer did notappreciate its employees. Although several of the ChargingParty’s friends and relatives commented on this secondpost, the four coworkers who were her Facebook “friends”did not respond. In the following days, the Charging Party informed oneor two coworkers and a supervisor about the incident thathad prompted her Facebook posts. These individuals offeredtheir sympathy, but none of them indicated that they viewedthe incident as a group concern or desired to take furthergroup action. During a social dinner, the Charging Partyalso mentioned the incident to the same coworker who“liked” her original Facebook status. That coworkerexpressed sympathy and may have generally referenced herdispleasure with her own job, but work-related issues werenot the primary subject of their conversation. On October 5, the Store Manager and a Human ResourcesManager interviewed the Charging Party and asked her toexplain her Facebook comments. She stated that she had 6
  7. 7. felt frustrated and attacked after her supervisor and theRegional Manager came to her about not performing tasksthat she had neither been trained nor instructed toperform. The Charging Party was discharged on October 15for her Facebook postings. Five days later, the Employer issued a new socialmedia policy, which applied to all social networkingcommunications. The section concerning restrictions on theuse of the Employer’s confidential and/or proprietaryinformation provided that, in external social networkingsituations, employees should generally avoid identifyingthemselves as the Employer’s employees, unless there was alegitimate business need to do so or when discussing termsand conditions of employment in an appropriate manner. The Employer’s employee handbook contained a nosolicitation/no distribution rule. This rule stated thatemployees may not solicit team members while on companyproperty and that employees may not solicit others while oncompany time or in work areas. Addressing the Charging Party’s discharge, weconcluded, under the Meyers cases, that the ChargingParty’s Facebook postings were merely an expression of anindividual gripe. The Charging Party’s first status updatewas because she was frustrated about an interaction she hadhad with her supervisor. The Charging Party had noparticular audience in mind when she made that post, thepost contained no language suggesting that she sought toinitiate or induce coworkers to engage in group action, andthe post did not grow out of a prior discussion about termsand conditions of employment with her coworkers. Moreover,there is no evidence that she was seeking to induce orprepare for group action or to solicit group support forher individual complaint. Although one of her coworkersoffered her sympathy and indicated some generaldissatisfaction with her job, she did not engage in anyextended discussion with the Charging Party over workingconditions or indicate any interest in taking action withthe Charging Party. Analyzing the employer’s rules under Lutheran HeritageVillage-Livonia, discussed above, we found unlawful theprovision of the Employer’s social media policy thatprovided that employees should generally avoid identifyingthemselves as the Employer’s employees unless discussingterms and conditions of employment in an appropriatemanner. Employees have a Section 7 right to discuss theirwages and other terms and conditions of employment. Here,the Employer’s rule limits employee discussion of terms andconditions of employment to discussions conducted in an“appropriate” manner, thereby implicitly prohibiting“inappropriate” discussions of terms and conditions of 7
  8. 8. employment. The policy does not define what an“appropriate” or “inappropriate” discussion of terms andconditions of employment would be, either through specificexamples of what is covered or through limiting languagethat would exclude Section 7 activity. We concluded thatemployees would therefore reasonably interpret the rule toprohibit protected activity, including criticism of theEmployer’s labor policies, treatment of employees, andterms and conditions of employment. We also found that the “savings clause” in theEmployer’s social media policy was insufficient to cure theambiguities in the rule and remove the chill upon Section7. The savings clause provided that the policy would notbe interpreted or applied so as to interfere with employeerights to self-organize, form, join, or assist labororganizations, to bargain collectively throughrepresentatives of their choosing, or to engage in otherconcerted activities for the purpose of collectivebargaining or other mutual aid or protection, or to refrainfrom engaging in such activities. We explained that anemployee could not reasonably be expected to know that thislanguage encompasses discussions the Employer deems“inappropriate.” We also determined that the no-solicitation rule wasunlawfully overbroad. Rules that ban solicitation in non-work areas during non-work time are “an unreasonableimpediment to self-organization . . . in the absence ofevidence that special circumstances make the rule necessaryin order to maintain production or discipline.” RepublicAviation Corp. v. NLRB, 324 U.S. 793, 803 (1945). As such,solicitation rules that prohibit employee solicitation oncompany property during non-work time are presumptivelyunlawful, although a retail establishment like the Employermay lawfully ban solicitation during non-work time in theselling areas of its establishment. Employees would reasonably interpret the portion ofthe Employer’s rule prohibiting employees from solicitingteam members while on company property to prohibit themfrom engaging in Section 7 solicitation during non-worktime in a non-selling area of the Employer’s property.Employees would also reasonably interpret the portion ofthe rule stating that employees may not solicit “on companytime or in work areas” as also precluding solicitationduring non-work time, such as a paid break, in a non-selling work area. 8
  9. 9. Work Rules Were Overbroad, But Discharge Under Rules WasLawful Because Employee’s Facebook Posts Were Not Protected Similarly, in this case we addressed the ChargingParty’s discharge under the Employer’s work rules becauseof her Facebook posts and the legality of the rules. Wefound that the rules were overbroad, but we concluded thatthe Facebook activity did not implicate terms andconditions of employment and was not protected. The Employer operates a restaurant chain. Itshandbook contains a section entitled Team Member Conduct &Work Rules. These rules provide that “insubordination orother disrespectful conduct” and “inappropriateconversation” are subject to disciplinary action. The Charging Party was a bartender at one of theEmployer’s restaurants. In late summer or early fall 2010,the Employer hired a new General Manager, who in turn hireda close friend as a bartender. The Charging Party and theother bartenders immediately began having problems with thenew bartender. Although the Charging Party was the mostsenior bartender and until then had been able to secure themore profitable weekend shifts based on her seniority, thenew bartender was assigned several weekend shifts. Inaddition, the Charging Party and one of her coworkerscomplained to the General Manager that the new bartenderfailed to clean up the bar, resulting in more work for thebartender who opened the bar the following day. On December 11, the Charging Party learned that thenew bartender was serving customers drinks made from a pre-made mix while charging them for drinks made from scratchwith more expensive premium liquor. The Assistant Managerdiscovered this, spoke to the new bartender about it, andmade a note in his personnel file. Meanwhile, on the morning of December 12, the ChargingParty posted a status update on her Facebook pageindicating that she had learned that a coworker/bartenderwas a cheater who was “screwing over” the customers. TheCharging Party is Facebook “friends” with coworkers, formercoworkers, and customers. In response to the ChargingParty’s status update, a former coworker asked if thebartender was stealing. The Charging Party replied that hewas using the mix instead of the premium alcohol and thatit had been mentioned at a staff meeting that the liquorcost was up. Later that day, the Charging Party posted a new updateto the effect that dishonest employees along withmanagement that looks the other way will be the death of abusiness. A coworker posted agreement but warned the 9
  10. 10. Charging Party to be careful with what she posted. Anothercoworker agreed. The following morning, the Charging Partyposted that she had every right to say how she felt. The Charging Party stated that she was concerned aboutthe new bartender’s behavior because she feared that ifcustomers found out, they might stop buying drinks at thebar or would tip lower, and as a result, her income wouldbe decreased. She was also concerned simply because thenew bartender’s behavior was dishonest. In the days that followed, the Charging Party spoke toanother bartender and a server about her Facebook posts.The server thought that her posts were brave. Her fellowbartender shared complaints with the Charging Party aboutother ways the new bartender was making their jobs moredifficult but did not share the Charging Party’s concernabout his substitution of cheap alcohol for premium liquor.At the same time, this bartender and two servers complainedto the General Manager about the Charging Party’s Facebookposts. They were worried that customers would see them. On December 15, the Employer discharged the ChargingParty for violation of the work rules, specifically usingunprofessional communication on Facebook to fellowemployees. We initially concluded, under Lutheran HeritageVillage-Livonia, discussed above, that the Employer’s TeamMember Conduct & Work Rules were unlawfully overbroadbecause the prohibitions on “disrespectful conduct” and“inappropriate conversations” would reasonably be construedby employees to preclude Section 7 activity. As noted above, in The Continental Group, Inc., theBoard outlined limits to the application of the rule thatdiscipline imposed pursuant to an unlawfully overbroad ruleviolates the Act. Thus, while the work rules that theEmployer applied to discharge the Charging Party areunlawfully overbroad, her discharge would be unlawful onlyif her Facebook activity was protected conduct or conductthat otherwise implicates Section 7 concerns. The Board has held that employee protests over thequality of service provided by an employer are notprotected where such concerns have only a tangentialrelationship to employee terms and conditions ofemployment. See, e.g., Five Star Transportation, Inc., 349NLRB 42, 44 (2007), enfd. 522 F.3d 46 (1st Cir. 2008). Onthe other hand, when employees engage in conduct to addressthe job performance of their coworkers or supervisor thatadversely impacts their working conditions, their activityis protected. See, e.g., Georgia Farm Bureau MutualInsurance Cos., 333 NLRB 850, 850-51 (2001). 10
  11. 11. Here, we found that the Charging Party’s Facebookposts regarding her fellow bartender’s job performance hadonly a very attenuated connection with terms and conditionsof employment. She made the posts because she was upsetthat he was passing off low-grade drinks as premium liquorand management was condoning the action. She did notreasonably fear that her failure to publicize hercoworker’s dishonesty could lead to her own termination.Although she later stated that she was concerned that thebartender’s conduct would cause customers to stop buyingdrinks or lower their tips, she did not state this concernin her posts. And this assertion is belied by the factthat she was communicating with customers about thebartender’s conduct, which if anything would cause theimpact on business that she later asserted she was tryingto prevent. Thus, we concluded, at most, that the Charging Party’sFacebook posts were motivated by a concern that the serviceher Employer was providing was deficient. In thesecircumstances, we found that the link between the subjectof the posts and any terms or conditions of employment wastoo attenuated to implicate the concerns underlying Section7. Accordingly, her discharge did not violate Section8(a)(1) even if her conduct was concerted and even thoughshe was discharged under the Employer’s overbroad rule. Employer’s Social Media Policy Was Overbroad, But Employee’s Facebook Posts Were Not Protected This case presented a similar situation. We foundthat the Employer’s social media policy violated Section8(a)(1), but we found that the Charging Party’s discharge,pursuant to the policy, for her Facebook posts was notunlawful because the conduct did not constitute protectedconcerted activity or fall within the ambit of Section 7. The Charging Party, a phlebotomist, had a history ofconflict with several coworkers. In the spring of 2010,the Charging Party was blamed for the discharge of anotheremployee and became the target of coworkers’ insults andthreats. She attempted to resolve these problems byinforming her supervisor and using the Employer’s EmployeeAssistance Program, but was unsuccessful. In frustration, in February 2011, the Charging Partyposted angry profane comments on her Facebook wall, rantingagainst coworkers and the Employer, and indicating that shehated people at work, that they blamed everything on her,that she had anger problems, and that she wanted to be leftalone. 11
  12. 12. One coworker commented that she had gone through thesame thing. Two other employees read these posts andprovided them to the Employer. On March 30, the LaboratoryDirector met with the Charging Party and informed her thatthe Human Resources Department had received a complaintregarding her Facebook postings. The Charging Party wasissued a written warning for violating the Employer’ssocial media policy, and terminated for multiple violationsunder the Employer’s progressive discipline policy. The Employer’s social media policy prohibits employeesfrom using social media to engage in unprofessionalcommunication that could negatively impact the Employer’sreputation or interfere with the Employer’s mission orunprofessional/inappropriate communication regardingmembers of the Employer’s community. Applying LutheranHeritage Village–Livonia, discussed above, we found thatthe policy here violates Section 8(a)(1) because it wouldreasonably be construed to chill employees in the exerciseof their Section 7 rights. These prohibitions would reasonably be read to includeprotected statements that criticize the Employer’semployment practices, such as employee pay or treatment.Further, the rule contained no limiting language excludingSection 7 activity from its restriction. We noted thatalthough the rule did contain examples of clearlyunprotected conduct, such as displaying sexually orientedmaterial or revealing trade secrets, it also containedexamples that would reasonably be read to include protectedconduct, such as inappropriately sharing confidentialinformation related to the Employer’s business, includingpersonnel actions. As noted above, in The Continental Group, Inc., theBoard outlined limits to the application of the rule thatdiscipline imposed pursuant to an unlawfully overbroad ruleviolates the Act. In this case, when the Employerterminated the Charging Party, it specifically cited itssocial media policy as grounds for her discharge. Wefound, however, that the Employer’s termination of theCharging Party did not violate Section 8(a)(1) because theCharging Party was not terminated for activity that eitherfalls within Section 7 or that touches the concernsunderlying Section 7. First, the Charging Party was not engaged in protectedconcerted conduct under the Meyers cases discussed above.Her Facebook postings expressed her personal anger withcoworkers and the Employer, were made solely on her ownbehalf, and did not involve the sharing of common concerns.The postings also contained no language suggesting that theCharging Party sought to initiate or induce coworkers toengage in group action. Second, the Charging Party did not 12
  13. 13. engage in conduct that, though not concerted, nonethelessimplicated common concerns underlying Section 7 of the Act.Rather, the Charging Party’s Facebook comments consisted ofpersonal and highly charged rants against coworkers andgeneral profanities about the Employer. Portions of Employer’s Communications Systems Policy Were Overbroad In this case, we applied Lafayette Park Hotel andLutheran Heritage Village-Livonia, discussed above, to findthat various provisions in the Employer’s CommunicationsSystems policy, including those dealing with use of theEmployer’s name and those governing social mediacommunications, could reasonably be construed to chillSection 7 protected activity in violation of Section8(a)(1). The Employer operates clinical testing laboratoriesthroughout the United States. In July 2010, it issued arevised Communications Systems policy on its intranet toits approximately 30,000 employees. The first provision we looked at prohibited employeesfrom disclosing or communicating information of aconfidential, sensitive, or non-public informationconcerning the company on or through company property toanyone outside the company without prior approval of seniormanagement or the law department. Employees have a Section 7 right to discuss theirwages and other terms and conditions of employment, bothamong themselves and with non-employees. A rule thatprecludes employees from discussing terms and conditions ofemployment, or sharing information about themselves ortheir fellow employees with outside parties, thereforeviolates Section 8(a)(1). Employees would reasonablyunderstand this provision to prohibit them fromcommunicating with third parties about Section 7 issuessuch as wages and working conditions. We found itirrelevant that the policy only prohibited communicationsor disclosures made on or through company property, asemployees have the right to engage in Section 7 activitieson the Employer’s premises during non-work time and in non-work areas. Moreover, the Employer failed to provide anycontext or examples of the types of information it deemsconfidential, sensitive, or non-public in order to clarifythat the policy does not prohibit Section 7 activity. Wealso found that this provision further violates Section8(a)(1) to the extent that it requires employees to obtainprior Employer approval before engaging in protectedactivities. 13
  14. 14. Another provision of the policy prohibited use of thecompany’s name or service marks outside the course ofbusiness without prior approval of the law department.Employees have a Section 7 right to use their employer’sname or logo in conjunction with protected concertedactivity, such as to communicate with fellow employees orthe public about a labor dispute. See, e.g., Pepsi-ColaBottling Co., 301 NLRB 1008, 1019-20 (1991), enfd. 953 F.2d638 (4th Cir. 1992). We concluded that this provision ofthe policy could reasonably be construed to restrictemployees’ Section 7 rights to use the Employer’s name andlogo while engaging in protected concerted activity, suchas in electronic or paper leaflets, cartoons, or picketsigns in connection with a protest involving the terms andconditions of employment. Although an employer has a proprietary interest in itsservice marks and in a trademarked or copyrighted name, wefound that employee use in connection with Section 7activity would not infringe on that interest. Interestsprotected by trademark laws--such as the trademark holder’sinterests in protecting the good reputation associated withthe mark from the possibility of being tarnished byinferior merchandise sold by another entity using thetrademark and in being able to enter a related commercialfield and use its well-established trademark, and thepublic’s interest in not being misled as to the source ofproducts using confusingly similar marks--are not remotelyimplicated by employees’ non-commercial use of a name,logo, or other trademark to identify the Employer in thecourse of engaging in Section 7 activity. The policy also prohibited employees from publishingany representation about the company without prior approvalby senior management and the law department. Theprohibition included statements to the media, mediaadvertisements, electronic bulletin boards, weblogs, andvoice mail. The Board has long recognized that “Section 7protects employee communications to the public that arepart of and related to an ongoing labor dispute.” ValleyHospital Medical Center, 351 NLRB 1250, 1252 (2007), enfd.sub nom. Nevada Service Employees Union, Local 1107 v.NLRB, 358 F. App’x 783 (9th Cir. 2009). An employer’s rulethat prohibits employee communications to the media orrequires prior authorization for such communications istherefore unlawfully overbroad. The Employer’s policy goesfurther, restricting all public statements regarding thecompany, which would include protected Section 7communications among employees and between employees and aunion. In another provision of the policy, the Employerrequired that social networking site communications be madein an honest, professional, and appropriate manner, without 14
  15. 15. defamatory or inflammatory comments regarding the employerand its subsidiaries, and their shareholders, officers,employees, customers, suppliers, contractors, and patients.We found that employees would reasonably construe broadterms, such as “professional” and “appropriate,” toprohibit them from communicating on social networking siteswith other employees or with third parties about protectedconcerns. Another provision in the social networking and weblogportion of the policy provided that employees neededapproval to identify themselves as the Employer’s employeesand that those employees who had identified themselves assuch on social media sites must expressly state that theircomments are their personal opinions and do not necessarilyreflect the Employer’s opinions. We noted that personalprofile pages serve an important function in enablingemployees to use online social networks to find andcommunicate with their fellow employees at their own orother locations. We found that this policy, therefore, wasparticularly harmful to the Section 7 right to engage inconcerted action for mutual aid or protection and wasunlawfully overbroad. Moreover, we also concluded thatrequiring employees to expressly state that their commentsare their personal opinions and not those of the Employerevery time that they post on social media wouldsignificantly burden the exercise of employees’ Section 7rights to discuss working conditions and criticize theEmployer’s labor policies, in violation of Section 8(a)(1). The Employer’s policy also provided that it couldrequest employees to temporarily and/or permanently suspendposted communications if the Employer believed it necessaryor advisable to ensure compliance with securitiesregulations, other laws, or in the best interests of thecompany. It required employees to first discuss with theirsupervisor or manager any work-related concerns, and itprovided that failure to comply could result in correctiveaction, up to and including termination. Although thefirst portion of the provision does not expressly restrictemployee communication, we found that the rule restrictedSection 7 activity by requiring, on threat of discipline,that employees first bring any “work-related concerns” tothe Employer. 15
  16. 16. Employer’s Initial Social Media Policy Was Overbroad, But Amended Version Was Lawful In another case, we found that an Employer’s socialmedia policy--as implemented--was unlawfully broad, butthat--as amended--it did not violate the Act. As implemented in 2010, the Employer’s social mediapolicy prohibited discriminatory, defamatory, or harassingweb entries about specific employees, work environment, orwork-related issues on social media sites. In June 2011,the Employer replaced that policy with one that prohibitedthe use of social media to post or display comments aboutcoworkers or supervisors or the Employer that are vulgar,obscene, threatening, intimidating, harassing, or aviolation of the Employer’s workplace policies againstdiscrimination, harassment, or hostility on account of age,race, religion, sex, ethnicity, nationality, disability, orother protected class, status, or characteristic. We concluded that the Employer’s initial social mediapolicy was unlawful under the second part of the LutheranHeritage test discussed above. The listed prohibitions,which contain broad terms such as “defamatory” entries,apply specifically to discussions about work-relatedissues, and thus would arguably apply to protectedcriticism of the Employer’s labor policies or treatment ofemployees. Moreover, in this case, the Employer hadactually applied this policy to restrict its employees’protected Facebook discussion regarding their workingconditions. The Employer’s interpretation and applicationof these phrases to cover that discussion would reasonablylead employees to conclude that protected complaints abouttheir working conditions were prohibited. We found, however, that the Employer’s amended policywas lawful. The Board has indicated that a rule’s contextprovides the key to the “reasonableness” of a particularconstruction. In this regard, the Board has found that arule forbidding “statements which are slanderous ordetrimental to the company” that appeared on a list ofprohibited conduct including “sexual or racial harassment”and “sabotage” would not be reasonably understood torestrict Section 7 activity. Tradesmen International, 338NLRB 460, 460-62 (2002). Like the rule in Tradesmen International, theEmployer’s amended social media policy would not reasonablybe construed to apply to Section 7 activity. The ruleappears in a list of plainly egregious conduct, such asviolations of the Employer’s workplace policies againstdiscrimination, harassment, or hostility on account of age,race, religion, sex, ethnicity, nationality, disability, or 16
  17. 17. other protected class, status, or characteristic. Further,unlike the initial policy, there was no evidence that theamended policy had been utilized to discipline Section 7activity. Provisions in Drugstore Operator’s Social Media Policy Withstand Scrutiny Similarly, we found that certain provisions in thesocial media policy of an Employer that operates a nationaldrugstore chain were not unlawful. We concluded that, incontext, employees would understand that these provisionsdid not prohibit Section 7 activity. The Employer’s social media policy provided that theEmployer could request employees to confine their socialnetworking to matters unrelated to the company if necessaryto ensure compliance with securities regulations and otherlaws. It prohibited employees from using or disclosingconfidential and/or proprietary information, includingpersonal health information about customers or patients,and it also prohibited employees from discussing in anyform of social media “embargoed information,” such aslaunch and release dates and pending reorganizations. We found that these rules were not unlawful. Althoughthe requirement to confine social networking communicationsto matters unrelated to the company could be construed torestrict employees from communicating regarding their termsand conditions of employment, we found that, in itscontext, employees reasonably would interpret the rule toaddress only those communications that could implicatesecurity regulations. Similarly, we found that theprohibition on disclosing confidential and/or proprietaryinformation acquired in the course of employment was notoverbroad. Considering that the Employer sellspharmaceuticals and that the rule contains severalreferences to customers, patients, and health information,employees would reasonably understand that this rule wasintended to protect the privacy interests of the Employerscustomers and not to restrict Section 7 protectedcommunications. Finally, we noted that employees wouldhave no protected right to disclose embargoes on corporateinformation; nor would they reasonably interpret the ruleto prohibit communications about their working conditions. Another provision in the Employer’s rules providedthat while engaging in social networking activities forpersonal purposes, employees must indicate that their viewswere their own and did not reflect those of their employer.They were also prohibited from referring to the Employer byname and from publishing any promotional content. 17
  18. 18. We again concluded that employees would not reasonablyinterpret this rule, which appears in a section entitled“Promotional Content,” to restrict Section 7 activity. Thesection includes a preface explaining that “specialrequirements apply to publishing promotional contentonline,” defines such content as “designed to endorse,promote, sell, advertise, or otherwise support the Employerand its products and services” and refers to FTCregulations. In this context, employees could notreasonably construe the rule to apply to theircommunications regarding working conditions, as they wouldnot consider those communications to promote or advertiseon behalf of the Employer. Employee Was Unlawfully Discharged for Her Facebook Complaint About Reprimand In another case, we considered whether the Employerunlawfully discharged the Charging Party after she postedcomments on Facebook complaining about being reprimandedfor her involvement in her fellow employees’ work-relatedproblems. We concluded that the Charging Party was engagedin protected concerted activity and thus the discharge wasunlawful. The Charging Party was an administrative assistant inan office area at the Employer’s plant. The Employer knewthat employees frequently sought her advice about workproblems. On February 2, 2010, following a severe snowstorm, theTank Yard Manager approached the Charging Party and theQuality Control Supervisor and asked them if they had madeit into work the prior day. When they said that they hadnot, he laughed and said that he knew the females would notmake it in. The Charging Party e-mailed her supervisor andan HR Assistant to complain about the Manager’s sexistremark. They did not respond. The next day, as she wasleaving work, the Charging Party used her cell phone topost a message on Facebook. Using some profanity, sheindicated that she could handle jokes but she did not wantto be told that she was less of a person because she was afemale. Although the Charging Party was Facebook “friends”with several coworkers, only one, the Quality ControlSupervisor who was with her when the Manager made thesnowstorm remark, responded during the conversation thatensued over the next few hours. In this conversation, theCharging Party, without specifically naming the Manager,made several derogatory remarks about him. Several“friends” expressed support for the Charging Party’s 18
  19. 19. negative assertions about the Manager, and one told herthat she needed to take it further. A week later, while the Charging Party was working inthe office with the Quality Control Supervisor, a coworkerwas called into an adjacent office with the Employer’sPresident, the Tank Yard Manager, and an HR Assistant.When the coworker came out, he said that he had been fired.As the President came out of the meeting, he looked at theQuality Control Supervisor and asked if she disagreed. Shesaid it was not fair, and then both she and the ChargingParty started to cry. The President told the ChargingParty that he did not know why she was upset and that shewas already on thin ice. The Charging Party then went into the restroom andposted a message on Facebook from her cell phone. Shestated that she couldn’t believe employees were losingtheir jobs because they asked for help, and she indicatedthat she was very upset. When she returned to her work area, the Presidentcalled her into a meeting. The President told her that shewas getting upset over something that was none of herbusiness. He stated that it was okay that employees cameto talk to her, but that management did not like that shegives them her opinion. She responded that she just toldemployees to keep a log and take notes that they can use tohelp them later. During her lunchtime, the Charging Party posted aseries of comments on Facebook using her cell phone. Thesecomments elicited sympathetic responses from two non-employee “friends.” The Charging Party said that it was avery bad day, that one of her friends had been firedbecause he had asked for help, and that she had beenscolded for caring. Later that afternoon, the President terminated her.He said that he had told her not to get emotionallyinvolved and then she had made the Facebook postings fromthe company computer on company time. He had printouts ofher Facebook comments. She pointed out that the postingscame from her cell phone. He responded that he had hadenough and that they did not appreciate the comments shehad posted the prior week about the Tank Yard Manager. Hethen signed an Employee Warning Report, which stated thatafter a coaching on not getting involved with otheremployee problems, the Charging Party had continued tovoice her opinion on Facebook on company time, that thiswas unprofessional, and would not be tolerated. As explained above, Section 7 protects employees’right to engage in “concerted activity” that is for “mutual 19
  20. 20. aid and protection.” Under the Meyers cases, the Board’stest for such concerted activity is whether the activity is“engaged in with or on the authority of other employees,and not solely by and on behalf of the employee himself.”As discussed, employees’ discussion of shared concernsabout terms and conditions of employment, even when “in itsinception [it] involves only a speaker and a listener, . .. is an indispensable preliminary step to employee self-organization.” Further, the Board has held that anemployer’s discharge of an employee to prevent futureemployee discussions of terms and conditions of employmentis unlawful. See Parexel International, LLC, 356 NLRB No.82, slip op. at 4 (2011). Here, the Employer was concerned about the ChargingParty’s involvement in her coworkers’ work-relatedproblems, including her discussions with fellow employeesabout terms and conditions of employment. The Presidentknew that employees came to her for advice, and heexpressly counseled her not to offer them her opinions.Her subsequent Facebook posting precipitated her dischargebecause the Employer perceived that she would not complywith his oral warning not to engage in protectedconversations with her fellow employees about their workingconditions. We therefore concluded that Charging Party wasdischarged for her protected concerted activity of engagingin discussions with her coworkers about working conditionsand as a “pre-emptive strike” because of the Employer’sfear of what those discussions might lead to. Employees’ Facebook Postings About Supervisor and Promotion Selection Were Protected Concerted Activity In this case, we considered whether the Employer--aveterinary hospital--violated Section 8(a)(1) bydischarging two employees and disciplining two otheremployees for their Facebook complaints regarding theirsupervisor and the Employer’s selection of an employee forpromotion. We concluded that the employees were engaged inprotected concerted activity and thus that the dischargesand discipline were unlawful. On March 31, 2011, the Employer promoted an employeeto the position of “co-manager.” Later that day and againthat evening, the Charging Party discussed the promotionwith two separate coworkers. The Charging Party told thecoworkers that she was upset with the way the position hadbeen filled and with the selection of the employee. When she got home, the Charging Party posted a messageon her Facebook account reflecting her frustration. Sheindicated that she had pretty much been told that all of 20
  21. 21. the work she had been doing wasn’t worth anything and thatshe couldn’t do it anymore. Three coworker Facebook “friends” responded to theCharging Party’s post, resulting in a Facebook conversationin which they complained, among other things, about thewoman who had gotten the promotion and about mismanagement.The Charging Party noted that she had not received a raiseor a review in three years, that the promoted individualdid not do any work, and that the Employer didn’t know howto tell people when they did a good job. One coworkercommented that it would be pretty funny if all of the goodemployees actually quit. The Charging Party expressed herappreciation for the support her coworkers had given herand stated that this wasn’t over by a long shot, and thather days at the employer were limited. In the days following this Facebook conversation, theEmployer terminated the Charging Party and one of thecoworkers, and disciplined the other two coworkers, becauseof their posts on Facebook. We concluded that the employees were engaged inprotected concerted activity when they posted comments onFacebook discussing their shared concerns about terms andconditions of employment. These discussions constituted“concerted activity for mutual aid and protection” withinthe meaning of Section 7 because multiple employees wereinvolved in the discussion, and the discussion involved aterm or condition of employment. Here, prior to herFacebook postings, the Charging Party spoke to twocoworkers, on separate occasions, about their sharedconcerns over how the Employer selected the employee forpromotion. The employees’ discussions on Facebook alsodealt with the Employer’s selection of the “co-manager,” aswell as with shared concerns over the quality of theirsupervision and the opportunity to be considered forpromotion, important terms and conditions of employment. In the Meyers cases, discussed above, the Boardarticulated that to be protected, concerted activity “mustseek to initiate or to induce or to prepare for groupaction.” This is most clearly met when an employee groupdiscussion expressly includes the topic of collectiveaction. But this requirement may also be met when thediscussion does not include a current plan to act toaddress the employees’ concerns. In this regard, the Boardhas long described concerted activity “in terms ofinteraction among employees.” Meyers I, 268 NLRB at 494.The Board has also explained that in a variety ofcircumstances, employees’ discussion of shared concernsabout terms and conditions of employment, even when “in itsinception [it] involves only a speaker and a listener, . .. is an indispensable preliminary step to employee self- 21
  22. 22. organization.” Meyers I, 268 NLRB at 494 (emphasis inoriginal); Meyers II, 281 NLRB at 887, quoting Root-Carlin,Inc., 92 NLRB 1313, 1314 (1951). Applying these principles, we concluded that theemployees were engaged in concerted activity by postingcomments on the Charging Party’s Facebook page. TheCharging Party’s Facebook post sparked a collectivedialogue that elicited responses from three of hercoworkers, and their conversations related to sharedconcerns among the employees over important terms andconditions of employment. We noted that the employees’ posts on Facebook mightsuggest group action. The suggestion by one coworker thatit would be pretty funny if the good employees quit and theCharging Party’s concluding statement that this wasn’t overand that her days were limited could be read as earlyexpressions of an intent to initiate group action and couldhave been the seeds of collective action to change theirworking conditions. While the concerted actions expressedin the posts were of a preliminary nature, we concludedthat the movement toward concerted action was halted by theEmployer’s pre-emptive discharge and discipline of all theemployees involved in the Facebook posts. Thus, weconcluded that the Employer unlawfully prevented thefruition of the employees’ protected concerted activity. Employee’s Facebook Postings About Manager’s Attitude and Style Were Protected Concerted Activity This case presented the issue of whether the ChargingParty was engaged in protected concerted activity when sheposted a message on another employee’s Facebook page. Weconcluded that she was and thus that her discharge wasunlawful. The Employer operates a popcorn packaging facility.Prior to the Charging Party’s Facebook posting at issuehere, numerous of the Employer’s employees had discussedamong themselves the negative attitude and supervision ofthe Employer’s Operations Manager and its effect on theworkplace. Several employees, including the ChargingParty, had expressed these concerns to management officialsor to a management consultant hired by the Employer. On February 23, 2011, several employees had a Facebookconversation, beginning with one employee’s posting thatthere had been so much drama at the plant. A secondemployee asked for details, and the first employeeresponded that she had heard another employee had gottenwritten up for being “a smart ass,” that there were stillno bags, and that they were going to have to work on 22
  23. 23. Saturday to make up for another day. The second employeereplied that the disciplined employee probably wasn’t “ahappy camper,” and the first employee commented that theEmployer complains about who goes on break and for how longand that they were not doing what they should be doing. A third employee, the Charging Party, then postedvarious comments, including that she hated that place andcouldn’t wait to get out of there. She also stated thatthe Operations Manager brought on a lot of the drama andthat it was the Operations Manager who made it so bad. The first employee then posted that she wished shecould get another job, and that it was hard to get a fulltime job. This conversation was not discussed furtheronline or at work by any of the employees involved. On March 2, the Employer discharged the Charging Partyfor her Facebook posting regarding the Employer and itsOperations Manager. We initially found that the subject of the ChargingParty’s Facebook posting was protected by the Act. It iswell established that employee complaints and criticismabout a supervisor’s attitude and performance may beprotected by the Act (see, e.g., Arrow Electric Company,Inc., 323 NLRB 968 (1997), enfd. 155 F.3d 762 (6th Cir.1998), and that the protest of supervisory actions isprotected conduct under Section 7 (see, e.g., DatwylerRubber and Plastics, Inc., 350 NLRB 669 (2007)). We further concluded that the Charging Party’s conductwas part of employees’ concerted activity for mutual aidand protection, both because it was a continuation of theearlier group action that included employee complaints tomanagement about the Employer’s Operations Manager, andbecause it was part of a discussion of employees’ sharedconcerns about terms and conditions of employment. We also decided that the Charging Party’s Facebookposting would have been protected in any case, because itarose as part of an employee discussion regarding sharedconcerns about terms and conditions of employment. TheCharging Party’s Facebook posting was directed to a groupthat included at least three coworkers. Although theposting was phrased in terms of the Charging Party’s owndissatisfaction with the Operations Manager and theEmployer’s operation generally, it arose in an ongoingconversation between employees discussing other Section 7subjects related to terms and conditions of employment,including the discipline of another employee, inadequatesupplies, and work scheduling. 23
  24. 24. Finally, we looked at whether the Charging Party’sFacebook posting lost the protection of the Act. In makingthis determination we considered whether the appropriatestandard should be that of NLRB v. IBEW, Local No. 1229(Jefferson Standard), 346 U.S. 464, 472 (1953) or theBoard’s Atlantic Steel Co., 245 NLRB 814, 816-817 (1979)standard. The Jefferson Standard test was established by theSupreme Court to analyze handbills that were part of anintentional appeal to the general public. The Board hasapplied this test to employee communications that areintended to appeal directly to third parties, with an eyetoward whether those communications reference a labordispute and are so disparaging of the employer or itsproduct as to lose the protection of the Act. Atlantic Steel is generally used to analyzecommunications between employees and supervisors, andspecifically focuses on whether the communications woulddisrupt or undermine shop discipline. In determiningwhether employee conduct is so “opprobrious” as to forfeitprotection under the Act, the Board looks at the place ofthe discussion, the subject matter of the discussion, thenature of the outburst, and whether the outburst wasprovoked by the employer’s unfair labor practices. Considering the focus and traditional application ofJefferson Standard, we concluded that it did not provide asuitable framework to analyze the Facebook posting here.We determined that this Facebook discussion was moreanalogous to a conversation among employees that isoverheard by third parties than to an intentionaldissemination of employer information to the public seekingtheir support, and thus that an Atlantic Steel analysiswould be more appropriate. We recognized, however, that aFacebook posting does not exactly mirror the situation inan Atlantic Steel analysis, which typically focuses onwhether the communications would disrupt or undermine shopdiscipline. We also noted that the Atlantic Steel analysisdoes not usually consider the impact of disparagingcomments made to third parties. Thus, we decided that amodified Atlantic Steel analysis that considers not onlydisruption to workplace discipline, but that also borrowsfrom Jefferson Standard to analyze the allegeddisparagement of the employer’s products and services,would more closely follow the spirit of the Board’sjurisprudence regarding the protection afforded to employeespeech. Applying this modified Atlantic Steel analysis, weconcluded that the Charging Party’s Facebook discussion didnot lose the protection of the Act. The subject matter ofthe posting weighed in favor of protection as it involved a 24
  25. 25. complaint about the Employer’s Operations Manager and hereffect on the workplace, a protected subject that was madeduring an employee discussion of the workplace and severalother Section 7 subjects that clearly involved orimplicated terms and conditions of employment. Weighingagainst a finding of protection was the fact that thediscussion was not provoked by an unfair labor practice. We decided that the remaining Atlantic Steel factors--the location of the conversation and the nature of theoutburst--must be adapted to reflect the inherentdifferences between a Facebook discussion and a workplaceoutburst. The discussion occurred at home during non-workhours, and thus was not so disruptive of workplacediscipline as to weigh in favor of losing protection undera traditional Atlantic Steel analysis. Further, althoughthe Charging Party complained about the Operations Manager,these complaints were not accompanied by verbal or physicalthreats, and the Board has found far more egregiouspersonal characterizations and name-calling to beprotected. However, given that the conversation was also viewedby some small number of non-employee members of the public,we also considered the impact of the Charging Party’sposting on the Employer’s reputation and business. Wefound that, in the context of this Facebook discussion, the“nature of the outburst” and “location” inquiries ofAtlantic Steel merge to require consideration of the impactof the fact that the discussion could be viewed by thirdparties. Here, the Employer asserted that the ChargingParty’s Facebook posting was “disparaging” of the Employerand its Operations Manager, and that this justified herdischarge. While the Charging Party’s comments about theEmployer’s Operations Manager were certainly critical, itis clear under Board law that they were not defamatory orotherwise so disparaging as to lose protection of the Act.They were of a nature routinely found protected by theBoard, and were not in any way critical of the Employer’sproduct or business policies. Thus, we decided that thismodified analysis weighed in favor of finding that theCharging Party’s Facebook posting retained the protectionof the Act. Finding that the only factor that weighed againstretaining the Act’s protection was that the discussion wasnot provoked by an unfair labor practice, we concluded thatthe Charging Party’s Facebook posting did not lose theprotection of the Act. 25
  26. 26. Employee’s Critical Online Postings Were Protected Concerted Activity That Did Not Lose Act’s Protection In another case, we considered whether the Employer--ahospital--violated the Act by disciplining and dischargingthe Charging Party-—a nurse--because of messages he postedonline during a seven-month period in 2010. We concludedthat all of the online postings were protected concertedactivity and that they were not so defamatory ordisparaging as to lose the protection of the Act. The background facts in this case go back to November2008, when a recently discharged hospital employee killedone supervisor and critically wounded another. TheEmployer’s internal investigation contended that thedischarge of the employee had been handled appropriately,but the Charging Party repeatedly asserted that theEmployer’s conduct contributed to the shooting incident. The Charging Party also often publicly criticized theEmployer’s “management style,” including a February 2009letter in the local newspaper in which he discussed theEmployer’s “abuse” of its employees. In October 2009, theCharging Party was quoted in a newspaper ad in which ahealthcare coalition stated that an advisory boardestablished by one of the state’s boroughs had foundsufficient evidence to warrant investigating the Employer’sconduct, including whether the Employer’s conductcontributed to the shootings. Also in October 2009, theUnion that represented the Employer’s nurses adopted aresolution pertaining to workplace bullying in healthcare,and the Charging Party was thanked for all of his hard workin its passage. In March 2010, the Charging Party posted an onlinecomment in the local newspaper in conjunction with a letterto the editor he had written that also was posted. Thecomment referred to the resolution of an unfair laborpractice charge the Charging Party had filed--during hisprevious service as the Union’s Grievance Officer--alleging that the Employer had unlawfully disciplined theUnion’s local president. On June 21, the Charging Party posted another localnewspaper online letter to the editor critical of theEmployer. Although the bulk of the letter did not dealdirectly with any specific actions taken by the Employer,the letter stated that the hospital’s corporate abuse wasdocumented and continuing and that this “national corporateparadigm” had led to destruction of life at the hospital. The first discipline under challenge in this caseoccurred on June 30, when the Charging Party received a 26
  27. 27. written reprimand regarding the March and June statements.The Employer contended that they were false and misleading,and that the June comments were inflammatory and injuriousto the hospital’s reputation. On July 20, a letter to the editor written by theCharging Party was posted on the local newspaper’s website.The letter discussed the Employer’s “management style,” butmostly focused on its monopoly status and relations withmunicipal officials. On July 22, the Charging Party postedan online comment in which he responded to a question by areader of his July 20 letter asking him to describe theEmployer’s management style. The Charging Party repliedthat his answer could get him fired, but he stated that theEmployer’s management style was “far worse” than bullying,that employees who stood up to management were isolated andattacked, and that personal information was used inattempts to destroy employees. He cited examples of fourother employees who stood up to management and weresubjected to abuse and manipulation. He also referred to acase that had gone to arbitration in which the employee hadnot yet received his backpay as ordered. The Employer suspended the Charging Party on July 28.It noted that while the July 20 blog itself did not rise tothe level necessary for corrective action, the July 22 blogcontained misleading and defamatory statements that wereinjurious to the hospital. On October 12, the Charging Party made a presentationto the borough assembly. The presentation included theCharging Party’s statement that, under the leadership ofthe Employer’s CEO, there had been multiple unfair laborpractices filed, forced policy changes, a murder/suicide,unfair firings, harassment, and workplace bullying. Thetext of this presentation was posted on the ChargingParty’s Facebook page and in an online comment in thenewspaper. On October 18, the Employer terminated the ChargingParty for posting the presentation. The Employer claimedthat the posting violated the conditions of his previousdisciplinary actions and that the statements were untrueand seemed to be designed to bring discredit to thehospital’s leadership. We initially found that the comments andcommunications relied on by the Employer in discipliningand discharging the Charging Party were related to and inthe context of an on-going labor dispute between theemployees and their employer. In this regard, the ChargingParty’s March 16 comment referred specifically to theresolution of an unfair labor practice charge. As to theCharging Party’s June 21 online letter, the Employer 27
  28. 28. expressly reprimanded the Charging Party for his discussionof hospital corporate abuses and the “national corporateparadigm” that led to the destruction of life at thehospital. In these statements, the Charging Party clearlywas referring to his assertions that the Employermistreated employees. We also noted that although most of the ChargingParty’s July 20 letter had, at best, an attenuated relationto any labor dispute, the Employer specifically stated thatit was suspending the Charging Party for his July 22 onlinecomment about the letter. That comment consisted almostentirely of a discussion of the Charging Party’s assertionsof the Employer’s bullying and destructive behavior towardemployees, including a lengthy discussion of the Employer’streatment of himself and four employees with whom he hadacted in concert. Lastly, we found that virtually all the subjectscovered in the October 12 postings involved labor disputeswith the Employer. The Charging Party discussed theparties’ collective-bargaining history, and repeated hiscriticism of the Employer’s management style and itsmistreatment of its employees, including unfair laborpractices, forced policy changes, unfair firings,harassment, and bullying. Next, we found, under the Meyers cases discussedabove, that all of the comments and statements relied on bythe Employer in disciplining and discharging the ChargingParty constituted concerted activity for mutual aid andprotection under the Act. The Charging Party’s statementswere the logical outgrowth of other employees’ collectiveconcerns or were made with or on the authority of otheremployees. The Charging Party’s discussion of the unfairlabor practice case and grievance that he had earlier filedreferred to action he took on behalf of other employees asthe Union’s Grievance Officer, and the Charging Party’sstatements about these matters were a continuation of theemployees’ earlier concerted union activity. The other statements asserting Employer workplaceabuse of employees were the logical outgrowth of long-standing concerted activity. These issues had arisen asearly as February and October 2009, when the Charging Partyjoined with other employees and Union officials inpublishing advertisements alleging Employer misconduct and“abuse” of its employees. Moreover, by October 2009, longbefore the discipline at issue here, the Charging Party hadbeen working with the Union on workplace bullying issues. In any event, we noted that the Charging Party’sstatements were widely approved by fellow employees.Throughout the entire period between the June 21 posting 28
  29. 29. and his October discharge, fellow employees posted manymessages of support for the Charging Party’s statements andgeneral encouragement for his activity on his Facebookpage, including statements such as: “Thank you for havingfaith in me & helping my voice be heard!;” “keep fightingthe good fight;” “Great letter;” “Thanks for helping usstay informed;” “Like the comment;” and “Thank you forspeaking for us who do not dare.” Finally, we addressed the Employer’s assertions thatthe Charging Party’s postings were unprotecteddisparagement or defamation. Under Jefferson Standard, discussed above, statementswill be found to be unprotected where they constitute “asharp, public, disparaging attack upon the quality of thecompany’s product and its business policies, in a mannerreasonably calculated to harm the company’s reputation andreduce its income.” 346 U.S. at 471. The Board, however,has cautioned that, “great care must be taken todistinguish between disparagement and the airing of whatmay be highly sensitive issues.” Allied Aviation ServiceCo., 248 NLRB 229, 231(1980), enfd. mem. 636 F.2d 1210 (3dCir. 1980). Here, the Charging Party raised sensitive issues inthe aftermath of a tragic shooting at the hospital.Indeed, his assertions that the Employer continued to“attack” and “destroy” employees who stood up to managementand that the Employer committed a long list of corporateabuses linked this conduct and the shooting. We found thatall of these claims, however, were general criticisms ofthe Employer’s treatment of its employees and their workingconditions and were related to and in the context of on-going labor disputes. Moreover, the criticisms did notdisparage the Employer’s product--its provision ofhealthcare. In considering the Employer’s assertions ofdefamation, we applied the Supreme Court’s determinationthat labor speech must be evaluated under the “malice”standard enunciated in New York Times v. Sullivan, 376 U.S.254, 280 (1964). This test requires a determination ofwhether the statements were made with knowledge of theirfalsity or with reckless disregard for their truth orfalsity. We also noted that the Board and courts haverecognized that statements in hotly contested laborcampaigns are often statements of opinion or figurativeexpression, “rhetorical hyperbole” incapable of beingproved true or false in any objective sense. We found that the statements challenged by theEmployer here were not unprotected defamation. TheCharging Party’s statements regarding unfair labor practicecases and an arbitration award were at least generally 29
  30. 30. fact-based and accurate. As to the Charging Party’sstatements alleging that the Employer abused, bullied,threatened, and attacked employees, as well as theallegations of broken promises, unfair firings, improperuse of personal information, and harassment, we found thatmany of these statements, if not most, expressed preciselythe kind of opinion or figurative expression that the Boardand courts have found to be “rhetorical hyperbole”protected under the Act. To the extent that these statements did assertprovable or disprovable facts, we noted that the ChargingParty’s comments arose out of his history of dealing with avariety of labor disputes with the Employer. In thisregard, the Charging Party’s statements included specificexamples underlying his conclusory allegations, examplesthat came from his observations of the Employer’s conduct,or from the reports of other employees. To the extent suchreports were not, in fact, accurate, it is well establishedthat where an employee relays in good faith what he or shehas been told by another employee, reasonably believing itto have been true, the fact that the report may have beeninaccurate does not remove the relayed remark from theAct’s protection. See, e.g., Valley Hospital MedicalCenter, 351 NLRB at 1252-53. In any event, there was noevidence that the Charging Party made up any of theseassertions, or that they otherwise were maliciously false.Finally, as to the Charging Party’s suggestions that theEmployer’s improper conduct may have contributed to theshootings at the hospital, we found that the Employer didnot show that these statements were knowingly false ormaliciously untrue. Employee’s Facebook Postings About Irritating Coworker and Workplace Incident Were Not Protected In another case, we looked at whether the Employerunlawfully disciplined the Charging Party for her Facebookcomments. We found no violation because we determined thatthe Charging Party was not engaged in protected concertedactivity. The Employer operates a childrens hospital. TheCharging Party was a respiratory therapist, who was alsoassigned to the transport team, which transports patientsto the hospital by ambulance, mostly from other hospitals. On the evening of January 11, 2011, the Charging Partywas traveling with the team to pick up a patient and bringher to the hospital. She was sitting in the back of theambulance with a coworker, a paramedic, who was sucking histeeth. The Charging Party found this practice irritating. 30
  31. 31. During the ride, the Charging Party used her cellphone to post a message on Facebook indicating that it wasdriving her nuts that her coworker was sucking his teeth.Two of her Facebook “friends,” who were not employees ofthe hospital, responded with supporting comments, and theCharging Party responded that she was about to beat himwith a ventilator. Once the transport team picked up the patient and hermother, the Charging Party was seated in the ambulancefacing the mother. After she noticed behaviors of thepatient that were similar to those of her own stepson, sheasked the mother whether anyone had ever told her that herdaughter was autistic. The coworker thought it wasunprofessional for the Charging Party to suggest this tothe mother. The coworker stated that he intended to saysomething to the Charging Party about it the next day. Before the coworker could say anything to the ChargingParty, one of his colleagues showed him the Facebook post.He thought it was vulgar and personally threatening and,instead of raising it with the Charging Party, he sent ane-mail to management the next day complaining about hercomments on Facebook and her conduct during the transport.As a result, later on January 12, management informed theCharging Party that they were removing her from thetransport team pending further investigation. The Employer investigated and, on January 13,suspended the Charging Party for two days because of hernegative and threatening Facebook comments about hercoworker. The Charging Party returned to work after hersuspension, though she could no longer work in transport.On January 25, she was given a corrective action form toexplain the suspension. In addition to the January 11threat to smack a coworker with a ventilator, the formreferred to the unprofessional conversation she had hadwith the patients mother, and another Facebook comment theEmployer had become aware of that she had posted inDecember, in which she had written that apparentlyrespiratory therapists didn’t know what they were talkingabout. She explained that this was a sarcastic commentthat she had written to express frustration over the lackof respect a doctor had shown her. She stated that thedoctor had degraded her and made her feel that, as arespiratory technician, she did not know what she wastalking about. The Employer claimed that the comment wasdisparaging of her coworkers because it suggested that herfellow respiratory therapists did not know what they weredoing. We found that the Charging Party’s January 11 post wasnot protected because it did not concern terms andconditions of employment. She was merely complaining about 31
  32. 32. the sounds her coworker was making, and was not evensuggesting that the Employer should do anything about it. To the extent that the Charging Party was alsodisciplined for her December Facebook posting, that commentcould arguably relate to terms and conditions of employmentbecause it pertained to her view that she was not respectedon the job. But, even if her comment concerned a protectedsubject, there was no evidence to establish concert. TheCharging Party did not discuss her Facebook post with anyof her fellow employees, and none of her coworkersresponded. Moreover, the Charging Party was not seeking toinduce or prepare for group action, and her activity wasnot an outgrowth of the employees’ collective concerns, butwas merely a personal complaint about something that hadhappened on her shift. Truck Driver Was Not Engaged In Concerted Activity and Was Not Constructively Discharged In this case, we found that the Charging Party’sFacebook postings did not constitute concerted activity andthat the Employer did not unlawfully engage in surveillanceby viewing the postings or unlawfully threaten him withadverse action, remove him from leader operator status, orconstructively discharge him. On December 31, 2010, the Charging Party--a truckdriver--traveled from Kansas to Wyoming to make a delivery.When he reached Wyoming, he learned that the roads wereclosed due to snow. He called the Employer’s on-calldispatcher several times to report that the roads wereclosed, but his calls were automatically forwarded to theoffice phone and then unanswered because of the holiday.He eventually reached another dispatcher and informed himthat the roads were closed and that the on-call dispatcherwas unreachable. While in Wyoming, the Charging Party spoke to otherdrivers and discussed that the on-call dispatcher was notanswering the phone. He then made several posts on hisFacebook page indicating that the road was closed, that noone was there when he called, and that if he or anyone waslate, it would be their own fault. He stated that hiscompany was running off all the good hard working drivers.No other employees joined in his Facebook conversation. The Charging Party is Facebook “friends” with theEmployer’s Operations Manager. On January 3, 2011, theOperations Manager posted a critical response on theCharging Party’s Facebook page that led to a Facebookdialogue between them. During that conversation, theCharging Party expressed concern for what he had posted and 32
  33. 33. feared that he could lose his job. The Operations Managersaid that he wouldn’t need to worry about what he saidanymore, and besides she had heard that another company washiring. The Operations Manager engaged in a simultaneousFacebook conversation with the Office Manager, in which theOffice Manager stated that she hoped the Charging Partywould be there the next day so that she could be the “truebitch” that she was. On January 9, the Charging Party returned to theEmployer’s facility. The Employer’s Customer ServiceSupervisor informed him that he was being stripped of hisstatus as a leader operator because of his Facebookcomments and unprofessionalism. As a leader operator, hegave assistance to new drivers and was paid an additional$100 per month for his cell phone bill. He returned to the facility again on January 25 andfound that no one there would talk to him. He took threedays off and then resigned on January 28. He claims thathe was forced to resign because of the way the officepersonnel acted towards him. We found no evidence of concerted activity under theMeyers cases, discussed above. The Charging Party did notdiscuss his Facebook posts with any of his fellowemployees, and none of his coworkers responded to hiscomplaints about work-related matters. Although he haddiscussed with other drivers the fact that the on-calldispatcher was not reachable, there is insufficientevidence that his Facebook activity was a continuation ofany collective concerns. Moreover, the Charging Partyplainly was not seeking to induce or prepare for groupaction. Instead, he was simply expressing his ownfrustration and boredom while stranded by the weather, bygriping about his inability to reach the on-calldispatcher. Accordingly, we found that any alleged threats ofreprisals contained in the Facebook comments by theOperations Manager and the Office Manager and the removalof the Charging Party’s leader operator status were notunlawful because they were not in retaliation for anyprotected concerted activity. Similarly, we found no unlawful surveillance ofprotected concerted activity as there were no union orprotected concerted activities subject to surveillance. We also noted that even where employees are engagingin protected activity, there can be no unlawfulsurveillance if the employer’s agent was invited toobserve. Thus, when the Charging Party here “friended” hissupervisor on Facebook, he essentially invited her to view 33
  34. 34. his Facebook page. Further, there was no evidence that theOperations Manager was acting at the Employer’s directionor was on Facebook for the sole purpose of monitoringemployee postings. Finally, we found that the Charging Party could notestablish the necessary elements of a constructivedischarge. Here, the alleged “silent treatment” that theCharging Party experienced at the Employer’s facility wasneither difficult nor unpleasant enough to force aresignation, particularly since most of his work hours werespent on the road. In any event, the alleged burdenimposed was not because of any protected activity.Employee’s Facebook Criticism of Supervisor Was Venting and Was Not Concerted Similarly, in this case we found that the Employer didnot violate the Act when it discharged the Charging Partyfor posting on his Facebook page a criticism of hissupervisor, which the Employer regarded as inappropriateand threatening. We concluded that the Charging Party wasnot engaged in concerted activity. The Charging Party worked in the warehouse at theEmployer’s wholesale distribution facility. On January 9,2011, the Charging Party began feeling ill and asked hissupervisor, the Operations Manager, if he could go homeearly. The Charging Party was told that he could leave butthat it would cost him an attendance point. Since healready had three attendance points, the Charging Partysaid that he would try to tough it out and hoped that hedid not pass out. Ten minutes later, the Charging Partywas told by his supervisor that if he was not feeling well,that was what the attendance points were for. The ChargingParty did not want to risk another attendance point so hecompleted his shift. After work, the Charging Party drove to a parking lotacross the street and accessed his Facebook account fromhis phone. The Charging Party, using expletives, postedcomments to his Facebook account indicating that it was toobad when your boss doesn’t care about your health. A“friend,” who is not a coworker, responded, and asked theCharging Party if he was worried. The Charging Partyreplied that he was not really worried, that he was just“pissed” because he had been there almost five years butwas treated as if he had just started, and that he thoughtthey were just trying to give him a reason to be firedbecause he was about “a hair away from setting it off.” Six of the Charging Party’s coworkers are his Facebook“friends.” None of them responded to these posts. 34
  35. 35. The Charging Party called in sick on January 10 and11. On January 12, the HR Manager told the Charging Partythat the Employer was aware of his inappropriate Facebookcomments, and showed him printouts from his Facebook page,including the above posts and his profile page, whichshowed that the Charging Party was an employee of theEmployer. The HR Manager told the Charging Party that sheinterpreted “setting it off” as bringing a gun to thewarehouse and shooting everyone in it. The Charging Partyexplained that he was “just venting,” that “setting it off”meant cussing someone out or walking out on the job, andthat he would never hurt anyone. The Charging Party wassuspended without pay pending an investigation. On January 14, the Charging Party was discharged forviolating company policy. The termination letter statedthat his Facebook comments were inappropriate, threatening,and violent. We concluded that the Charging Party did not engage inany concerted activity under the Meyers cases discussedabove. Although the Charging Party’s postings addressedhis terms and conditions of employment, he did not seek toinitiate or induce coworkers to engage in group action, andnone of his coworkers responded to the postings withsimilar concerns. Nor were his postings an outgrowth ofprior employee meetings or attempts to initiate groupaction with regard to the Employer’s sick leave orabsenteeism policy. Indeed, the Charging Party himselfcharacterized his conduct as “just venting.” 35

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