As discussed in a previous post, employers cannot terminate employees for using social media to exercise their right to engage in protected concerted activity (typically seen as “unionizing”). Holding that employers cannot fight fire with fire, a recent court decision has now limited the extent of the employer’s ability to use social media to oppose “unionizing” activities.
Under the National Labor Relations Act (NLRA), employers cannot denounce or humiliate a union supporter in the presence of another employee, harass the supporter, or threaten the supporter because of his or her support of the union. Likewise, an employer cannot disparage a union supporter when it has the coercive effect of subjecting protected concerted activities to ridicule or frustrate such efforts. The governing body responsible for enforcing the act, the National Labor Relations Board (NLRB), has found that such conduct may cause employees to believe that their loyalty to a union is not worth the effort in the face of such degradation. Singling out a employee and directing offensive words toward that employee may coerce, intimidate, or harass an employee, which are all actions prohibited by the NLRA.
Protected concerted activities are actions taken by employees to try to improve pay and working conditions, regardless of whether or not they belong to a union. As covered in my last post, these activities include informal social media posts that complain about wages or product costs. Under the act, employees cannot be fired, suspended, or otherwise penalized for taking part in protected group activity.
With an understanding of these basic principles of prohibited employer activities and the right of any employee to participate in protected concerted activities, let’s examine the story of how the NLRB found a restaurant chain had committed unfair labor practices by having supervisors and managers post on Facebook. In addition, we’ll note a number of additional unfair labor practices the employer committed as well.
From 2007 to 2010, the Industrial Workers of the World (IWW) tried to organize employees of a Minnesota restaurant chain. One of the issues in the campaign was the lack of paid sick leave. In particular, the chain required employees to find their own replacements if they got sick. In other words, employees were not allowed to call in sick. Instead, employees were required to find a replacement worker before missing a shift. If an employee called in sick (without finding a replacement), the “unexcused” absence resulted in negative points as part of the chain’s disciplinary system. Yet the chain’s policy also prohibited the employees from working if they had flu-like symptoms. In essence, employees were caught between a rock and a hard place whenever they fell ill.
IWW lost a representation election in 2010 and settled an unfair labor practice case against the chain in 2011.
In 2011, an IWW supporter (and employee of the chain) posted a notice about the settlement agreement on a restaurant bulletin board. A manager later removed the notice.
In early 2011, a group of employees placed posters on bulletin boards in the public areas of the chain’s restaurants. The posters showed two sandwiches side by side and described one as made by a healthy employee and the other by a sick employee. The poster explained that customers were taking the sandwich test and expressed hope that the customers’ immune systems were ready. The poster then appealed for help in getting paid sick leave. Managers removed these posters as well.
In March 2011, a group of employees met with the chain’s vice president to discuss sick leave and told him that employees were working while sick. They presented the vice president with a letter from the IWW indicating that if another meeting was not held about sick leave, the employees would place posters in other places all over the city. Later that month, IWW issued a press release about unhealthy conditions at the restaurants. The chain failed to respond to the IWW letters. Employees placed posters similar to the ones previously posted in the restaurants, but added the vice president’s telephone number so that people could call him. Managers took down as many of these posters as they could find. In addition, the restaurant chain terminated a number of the organizers of the poster campaign.
In approximately October 2010, an employee of the restaurant chain had established an anti-union Facebook group, accessible to anyone with a Facebook account. Both before and after the poster campaign, the vice president, area managers, restaurant managers, assistant managers, and other employees posted on the anti-union page. The posts disparaged IWW, often using crude and profane language. One post encouraged people to take down the posters placed around the city. An assistant manager posted the telephone number of one of the union organizers (who was also an employee of the restaurant chain) and suggested that people call him to tell him what they thought about him and IWW.
After the employees were terminated, the IWW filed a complaint with the NLRB alleging unfair labor practices.
An administrative law judge (ALJ) found that the restaurant chain had committed most, but not all of the violations alleged in the complaint. The chain filed exceptions to the ALJ’s decision, and the NLRB unanimously affirmed that the chain had violated the act by removing union literature from otherwise unrestricted employee bulletin boards and using Facebook to harass a pro-union employee about his protected activities. By a 2–1 vote, the NLRB found the chain had violated the NLRA by terminating employees for their participation in the sandwich poster campaign. The NLRB found that there was nothing in the posters or press release that was so disloyal, reckless, or maliciously untrue that caused the employees to lose protection under the act.
A single board member dissented, indicating that a statement on the poster—“Shoot. We Can’t Even Call In Sick”—to be empirically false. The dissent concluded that because the employee-publishers published the statement even though they knew it was false, the distribution was maliciously motivated with the primary intent to injure the chain’s business reputation and income rather than to redress the sick-leave grievance. In the dissenter’s opinion, this malicious intent should cost the employees their protection under the act. The chain maintained the statement was false because Minnesota Health Department regulations prohibited employees working with certain illnesses.
Summary of NLRB’s actions
The NLRB issued a cease-and-desist order prohibiting the restaurant chain from—
- Terminating or otherwise discriminating against employees who supported the IWW.
- Asking employers, managers, and supervisors to contact pro-union employees about their activities in support of the union, including doing so on Facebook.
- Removing posters not on the chain’s property.
- Removing posters on the chain’s property in areas where employees are generally allowed to post anything without restriction.
The NLRB ordered the restaurant chain to—
- Rehire the terminated employees and to pay them for lost earnings.
- Rescind written warnings given to employees who had participated in the pro-union activities but who were not terminated.
- Remove records of termination or warning from these employees’ personnel files.
- Provide payroll records to the NLRB so that back pay due to the employees could be calculated.
- Post a copy of the notice or otherwise communicate the NLRB’s notice to its current and former employees.
Federal courts defer to NLRB decisions because Congress has given the power to maintain national labor policy to the board, not to the courts. For that reason, a court review of any NLRB decision is very narrow and limited. The court will enforce the NLRB’s decision if it has correctly applied the law and if its factual findings are supported by substantial evidence on the record as a whole. Evidence is substantial if a reasonable person would think it supports the decision. That means the court will enforce the NLRB’s decision even if the court would have reached a different decision in considering the case on its own.
On appeal, the U.S. Eighth Circuit Court of Appeals affirmed the board’s decision by 2–1 vote. The court found that the NLRB had correctly applied the law and that its decision was supported by substantial evidence. As you might expect, the court split on the issue of whether the employee statement— “Shoot. We Can’t Even Call In Sick”—caused the employees to lose protection of the act. After the court stated that employee activity can in fact be so disloyal that it can cause the employees to lose protection of the act, the court concluded that did not happen in this case for several reasons:
- The statement was made within the context of a labor dispute concerning unpaid sick leave.
- There was uncontroverted testimony that employees had worked while sick.
- Restaurant sandwiches were implicated on two separate occasions as the source of a public outbreak of norovirus.
- Although some might argue that the poster exaggerated the potential of getting sick from the chain’s food, the NLRB’s majority found that it only suggested a realistic potential of getting sick from food workers who work while sick.
The court then refused to substitute its opinion for that of the majority vote of the NLRB, instead applying the more deferential standard used to review NLRB decisions.
Lessons to be learned
- As we have discussed, a union does not have to be involved for an employer’s actions to qualify as unfair labor practices.
- Do not take down posters placed by employees in areas where employees are generally allowed to post anything.
- Do not take down posters placed by employees in locations other than the employer’s workplace.
- Do not use social media (like Facebook) to hassle unhappy workers about their opinions of working conditions.
For more information see Miklin Enterprises, Inc. v. NLRB, 2016 WL 1169074 (8th Cir., decided March 25, 2016).
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