Employees today are certainly more media and marketing savvy than they were even 10 years ago, and they have more tools through which they can reach the public and each other to let their voices be heard. Two recent NLRB cases demonstrate that if employers are too aggressive in attempting to combat these employee communications, they can end up on the wrong end of an unfair labor practice finding.
In Triple Play Sports Bar & Grille, the National Labor Relation Board held that two employees had engaged in protected concerted activity under the National Labor Relations Act (“Act”) when they responded to a co-worker’s post on Facebook complaining that the employer had incorrectly withheld taxes from their paychecks. The error apparently resulted in several employees having an unpleasant surprise on tax day. One employee commented “I owe too. Such an asshole.” The other employee merely clicked on the “Like” button.
The Board concluded that both employees had lawfully engaged in dialogue about terms and conditions of employment and that they had not been “so disloyal as to lose the Act’s protection” because they did not disparage their employer’s products or services or defame the employer. In addition, the Board concluded that the one employee’s use of a single expletive did not deprive him of the protections of the NLRA.
In MikLin Enterprises dba Jimmy John’s, pro-union employees engaged in a campaign to bring public attention to their goal of getting paid sick leave from their employer. As part of their campaign, they created posters that showed two identical looking sandwiches and asked whether the viewer could tell which sandwich was made by the sick Jimmy John’s employee. The point of course was to show potential customers that there was no way to know. The poster then stated that Jimmy John employees were not permitted to call in sick and asked people to call a phone number to encourage the company to provide its employees with paid sick leave.
“Like” the employer in Triple Play (sorry, pun intended), the employer terminated its employees who were involved in the campaign. The Board, in a 2-1 decision, however, ordered the employees reinstated with back pay. The Board concluded that the posters were prepared as part of an ongoing labor dispute, were essentially true, and were not maliciously motivated. Although the dissent agreed that the posters were created as part of an ongoing labor dispute, it disagreed with the majority on the poster’s truthfulness and maliciousness. First, the dissent noted that the employees in fact could call in sick, so long as they were able find a replacement for the day. In addition, the dissent contended that even the intimation that a food industry employer’s food was contaminated was so malicious as to be disloyal.
The bottom line for employers is simply this: While the desire to discipline or terminate employees who say things that feel overly critical or disloyal is certainly understandable, it is important to take a step back and consider whether the communications may be protected under the NLRA. If the communication addresses employees’ working conditions or issues in an ongoing labor dispute, the employer can expect the Board to give the employees the benefit of the doubt except in the most extreme cases where the employee’s comments can be shown to be defamatory or so disloyal as to lose protection under the Act.