June 21, 2017
Compliance Matters

NLRB Reaffirms That Employees Have Wide Latitude To Publicly Criticize Management  
In this issue of Compliance Matters, we discuss two recent National Labor Relations Board cases addressing employees who were fired for having publicly criticized their employers.  In both cases, the NLRB prosecuted the employer for terminating an employee that engaged in activities protected by the National Labor Relations Act.  Since the Act protects a broad range of commentary and behavior that many employers consider to be insubordination or even outright acts of disloyalty, it is prudent for business owners to become acquainted with how this law affects day-to day decision making.

The first case involves a New York based caterer, Pier Sixty. The NLRB ordered the company to reinstate an employee who it fired after discovering the following profanity laced Facebook tirade against his supervisor (profanity edited):

"Bob is such a NASTY MOTHER F***** don't know how to talk to people!!!! F*** his mother and his entire f****** family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!"

After the employee was fired, the employee filed charges against the company with the NLRB and won. The employee alleged that he had a federally protected right to say these things and both the NLRB and a federal reviewing court agreed. According to the NLRB, the termination was unlawful because the employee was fired for exercising his legally protected right to criticize his employer and urge co-workers to think the same way about the company. Both the NLRB and the reviewing court concluded that the post was nothing more than a lawful expression of the employee's feelings about the company and his supervisor, especially when the comment appeared during the run up to an NLRB supervised union election at the company. The court made short shrift of the employer's argument that the post went too far because of the profanity. According to the court, the "Facebook post, although vulgar and inappropriate, was not so egregious as to exceed the Act's protection."

In  concluding that the obscene speech was protected (and that the employer violated the law when it terminated the employee for posting the filthy tirade), the reviewing Court relied upon the fact that: (1) the Facebook post addressed workplace concerns regarding treatment of employees and an upcoming union election; (2) the employer had a past tolerance of profanity in the workplace and did not terminate others for similar behavior; (3) the activity did not occur in the workplace, but on an online forum that did not impact customers or a catering event; and (4) the employee removed the post from Facebook shortly after learning that the post was publicly accessible.

The second case involves a security officer who called into talk radio to criticize his employer, Trinity Technology Group, which performs contract security for the TSA. The officer called a national radio talk show to advocate that TSA operations not be contracted to private companies like his employer. Without mentioning Trinity by name, he described working for the contractor as "a nightmare." The employee complained about his employer's treatment of employees, and accused the company of being understaffed and undertrained. He described a security incident where "the contractor dropped the ball." Additionally, the employee commented on the efficacy of certain security operations and protocols. Management fired the employee for the comments, citing to several policy violations having to do with the sharing of secret company information and making the company look bad.

In an effort to provide guidance on whether the employee's comments exceeded the bounds of protection, the NLRB's Office of the General Counsel issued an Advice Memo analyzing this issue. The General Counsel concluded that the employee's on-air statements were protected by the law and that the employee's discharge for making the protected comments was thus unlawful. Accordingly, the General Counsel recommended that a complaint be issued against Trinity.

The General Counsel reasoned that the call was legally "protected" activity because the law protects employees who communicate with third parties in an attempt to obtain support. According to the General Counsel, the employee's call was "a logical outgrowth of the employees' discussions of their common complaints" and "it was evident to listeners that the comments concerned an ongoing labor dispute." Although several of the employee's statements were inaccurate, the General Counsel nevertheless opined that they were not so disloyal, reckless, maliciously untrue, or indefensible as to forfeit legal protection. Rather, he found that the comments were a protest of safety matters. Additionally, the employee's conduct in sharing alleged sensitive security operations in violation of a TSA non-disclosure agreement was not unlawful because company witnesses conceded that the information which the employee disclosed on the radio program already was generally available to the public.

What This Means For You 

Most business owners don't even realize that the Act applies to non-union businesses. And, in the past several years, plaintiff's counsel have become astute at using this often misunderstood federal law to buttress civil claims against an employer. We urge all business owners to become acquainted with the many ways this law touches routine business decisions and to train line managers to recognize protected conduct before taking personnel actions at odds with the law.

In light of these and other similar NLRB public commentary rulings, business owners must be especially careful when terminating or disciplining employees who have publicly ridiculed the company to get across a point about workplace conditions, even if the employees are not represented by a union or not seeking union representation. Although such criticism is often infuriating, employers would be wise to take a step back to assess the conduct in question with counsel before taking action. While obscenities or reckless comments may sometimes render such statements unprotected, the two cases discussed in this issue of Compliance Matters demonstrate the lengths to which the NLRB will go in determining that the speech is legally protected and cannot be the basis for employee discipline. Nor will it help simply to have a company policy prohibiting the behavior in question. According to the NLRB, many such policies are unlawful because they authorize discipline for conduct that is protected under the Act.

While pro-business partisan change is very likely coming to the NLRB, it will take time for the new Administration to complete the appointment process for two vacancies on the Board and to appoint a new NLRB General Counsel to replace the incumbent (an Obama holdover) whose term expires in November 2017. Each of those appointments requires confirmation by the U.S. Senate. In the interim, the current composition and pro-employee leanings of the NLRB and its General Counsel remains.  Unless an employee's statement is either maliciously false, or disparages the company's products in a manner calculated to harm the company's reputation and reduce public patronage, the most prudent course of action is to seek expert advice before disciplining or terminating an employee for critical social media or over the airwaves commentary -- no matter how disrespectful the comments may seem to be.

If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700 or visit us online at www.brgslaw.com .

Richard S. Rosenberg
Matthew T Wakefield
Justin T. Youngs 
Ballard Rosenberg Golper & Savitt, LLP

15760 Ventura Blvd.
Eighteenth Floor
Encino, CA 91436
(818) 508-3700

6135 Park Drive South
Suite 510
Charlotte, NC 28210
Matthew Wakefield:
(704) 846-2143 


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