The intersection of social media and employee rights under the National Labor Relations Act has received a great deal of attention in recent months, including recently on this blog.  Social media sites such as Facebook and LinkedIn have made it very easy for people to stay connected.  With a simple push of the button, everyone in a widespread group, friends and beyond, can receive real time information about a person.  The ease of people staying connected also has made it more difficult for employers.  Employee comments were once confined to a small group gathered around the water fountain.  Employers now are confronted with an array of unflattering comments (and in some cases pictures) about things occurring in the workplace that appear online for all to see; once it gets online, it can be copied and forwarded to any number of people.

Negative posts often have resulted in employer action, including termination of the posting employee.  In some cases, the employees have gone to the NLRB to complain that the conduct was protected under the NLRA because it concerned terms and conditions of employment and was of a concerted nature.

Two recent dismissals of NLRB cases underscore the fact that just because you can post a gripe online, it does not mean you will receive the government’s protection.   In each case, the conduct was found to be “unprotected” meaning the NLRA was not implicated because the relationship to terms and conditions of employment was not material.

The case of the angry BMW salesman

As we reported in May of this year, a BMW dealer in Illinois fired a salesman who posted online pictures and commentary critical of a sales event.  The employee objected to the fact the employer made available only hot dogs and chips to customers.  After his discharge, the salesman filed charges and the NLRB issued complaint.  The NLRB’s original press release on the case cited only the employee’s postings about the sales event.

A trial was held on July 21, 2011.  At trial, the employer admitted that the employee was fired for his Facebook postings.  The employer asserted, however, that it fired the salesman for posting pictures and commentary detailing in mocking terms a Land Rover accident at the employer’s sister dealership located next door to the BMW dealership.  So, the real dispute was whether the employee’s work related “grievance” about the sales event or whether the posting about the accident was the reason for his termination.

The Administrative Law Judge in his decision analyzed the sales event and the Land Rover crash separately under the Act.  As to the sales event, the Judge found that it was protected, concerted activity because evidence at the hearing established that the salespeople at the dealership had a meeting with management to discuss how the sales event was handled, and these concerns were discussed afterword by salespeople.  Even though the employee who was fired was the only one of the salespeople to post comments about the event on Facebook, this conduct was deemed protected because the complaint about the sales event highlighted things that could have resulted in reduced compensation for the salespeople generally.  The Judge, however, seemed to conclude that it was only barely protected, stating in his decision:

While it was not as obvious a situation as if he had objected to the [Employer] reducing their wages and benefits, there may have been some customers who were turned off by the food offerings at the event and either did not purchase a car because of it or gave the salesperson a lowering (sic) rating in the Customer Satisfaction Rating because of it; not likely, but possible.

The Judge noted that the discharged employee had 95 friends, sixteen of whom were employed by the employer.  The employee acknowledged that his privacy settings allowed access to “friends of friends”, so the potential number of people who saw his posts about his employer could well be over a thousand people or more.  How a negative complaint about a sales event made to the public was to “help” the salespeople is not explained.

The Judge went on to conclude that the salesman’s discharge was not unlawful because the real reason the employer fired him was for posting material which made fun of the Land Rover accident.  The Judge’s analysis on this posting of the employee was a bit more direct:

On the other hand, I find that [employee’s] posting of the Land Rover accident on his Facebook account was neither protected nor concerted activities, and Counsel for the General Counsel does not appear to argue otherwise.  It was posted solely by [employee], apparently as a lark, without any discussion with any other employee of [Employer], and had no connection to any employees’ terms and conditions of employment.  It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting. . .

At the end of the day, it seems the NLRB issued a complaint betting that it would win the credibility dispute between the discharged employee (who claimed the posting over the sales event was the sole motivation for his discharge) and the employer’s representatives (who asserted it was more about the Land Rover posting) over the motivation for the discharge.  The Judge ultimately believed the employer, and was openly skeptical of the Region’s theory even if he did conclude that the posting about the sales event was protected, concerted activity.

Despite clearing the employer of the discharge, the Judge ruled certain of its policies were unlawfully overbroad.

The Judge’s Decision in Karl Knauz Motors, Inc. (Case No. 13-CA-46452).pdf issued on September 28, 2011.

The case of the “whistleblower” bartender

In another twist of where an employee seizes on the hype surrounding the NLRB’s issuance of complaint in some Facebook related cases, a bartender attempted to claim she was fired unlawfully for posting material about certain alleged misconduct by a co-worker.  On September 19, 2011, the NLRB’s Division of Advice concluded that a charge filed by a bartender in Puget Sound, Washington should be dismissed.

The facts are pretty basic.  The bartender (“Charging Party”), one of four at a restaurant, discovered that “a new bartender was serving customers made from a pre-made mix while charging them for drinks made from scratch with more expensive premium liquor.”  The Assistant Manager of the restaurant learned of the problem, counseled the errant bartender, and noted the action in his personnel file.

Despite the fact the problem seemed to be resolved, the Charging Party posted comments on her Facebook page to the effect that, “So, I just learned that a fellow coworker/bartender is a cheater! He has been screwing over our faithful customers! Very nice!”  The Charging Party includes among her Facebook acquaintances customers, co-workers and former co-workers.  There was some exchange online between Charging Party and a former co-worker about the situation.

Charging Party continued to post comments about the situation.  A fellow bartender, some servers at the restaurant, and Charging Party discussed the situation at work.  Some people supported the Charging Party, while others did not.  The bartender who was part of this discussion complained to General Manager about Charging Party, apparently worried her posts would be seen by customers.  The employer discharged Charging Party for, “Use of unprofessional communication on her facebook (sic) to fellow employees viewed by employees.”

So, here we have a case where the employer made clear that the employee was being fired for things posting comments her fellow employees could see.  Was this activity protected?  Charging Party asserted her discharge was unlawful because she was acting as a whistleblower, pointing out how customers were being “cheated” by her fellow bartender.

Advice concluded Charging Party’s discharge was not unlawful.  In reaching this conclusion, Advice reviewed the law, noting the grievance’s relationship to an employee’s terms and conditions of employment is of paramount importance:  “The Board has held that employee protests over the quality of service provided by an employer are not protected” if the relationship between the service quality and terms and conditions is “tangential.”  In contrast, “when employees engage in conduct to address the job performance of their coworkers or supervisor that adversely impacts their working conditions, their activity is protected.”  Specifically, because the Charging Party’s assertions claimed a “whistleblower” type motivation, Advice detailed the Board’s decision in Georgia Farm Bureau Mutual Insurance Cos., 333 NLRB 850, 850-51 (2001).pdf,  where the employer was found to have unlawfully discharged two employee insurance agents for reporting a supervisor’s fraudulent claims processing to the Georgia State Insurance Commissioner.  The Board noted that each insurance agent’s employment agreement stated they could be “immediately terminated” for misconduct, including fraud, and the State Insurance Code required licensed agents to report suspected fraud.  The insurance agents’ conduct was deemed protected, concerted activity, because they “reasonably feared that a failure to report the suspected fraud could impact adversely on their working conditions.”  Id.

In the bartender’s case, of course, she didn’t report her fellow bartender’s actions to any authority, nor was she required to do so.  In fact, she just complained about it in a Facebook posting, viewable to the world, including customers and co-workers.  The Charging Party had no reasonable fear that failing to report the alleged misconduct would result in her termination.

Also, and what makes this case stand out, is the fact the Charging Party’s fellow bartender reported her Facebook posts to the employer because he believed they would result in a loss of business.

In determining the case should be dismissed, Advice was blunt in its assessment that Charging Party’s conduct did not rise to the level of a noble whistleblower:

Here, the Charging Party’s Facebook posts regarding her fellow bartender’s job performance had only a very attenuated connection with terms and conditions of employment.  She made the posts because she was upset that he [the other bartender] was passing off low-grade drinks as premium liquor and management was condoning the action.  Unlike the situation in Georgia Farm Bureau the Charging Party did not reasonably fear that her failure to publicize her coworker’s dishonesty could lead to her own termination.  Although she later stated that she was concerned that the bartender’s conduct would cause customers to stop buying drinks or lower their tips if they found out, she did not state this concern in her posts.  And this assertion is belied by the fact that she was communicating with customers about the bartenders’ conduct, which if anything would cause the impact on the business she now asserts she was trying to prevent.

Advice’s analysis is spot on.  In this case, we have a gripe damaging to the business that is really unrelated to the person’s terms and conditions of employment.  Indeed, it appears that management took action against the bartender who allegedly was passing off “low-grade” liquor as premium; it doesn’t seem as though Charging Party ever herself reported her fellow bartender to management.  The inappropriateness of Charging Party’s conduct is further demonstrated by the fact she was turned into management by a fellow bartender.

Like the BMW salesman’s case, the discharge was found to be unlawful despite the existence of an overbroad policy.  Review your policies.

The Advice memorandum in The Rock Wood Fired Pizza & Spirits (NLRB Case No. 19-CA-32981).pdf issued September 19, 2011.

These two cases show that while these types of cases have garnered a lot of attention, the law remains the same as before the advent of Facebook and other social media.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.