Paula Lopez, August 22, 2017

The National Labor Relations Board (NLRB), in its recent decision in Butler Medical Transport LLC, upheld an administrative law judge’s decision that Butler Medical unlawfully terminated an employee for a Facebook post responding to a co-worker’s announcement that she had been terminated.  In the Facebook post, William Norvell advises his former colleague and work partner to “think about getting a lawyer and taking them to court” and to “contact the labor board too.”  In a split decision, the NLRB ruled that Mr. Norvell’s post constituted protected concerted activity because he was offering “advice to his former coworker regarding future action.”

The NLRB also found Mr. Norvell’s termination to be improper because it was based on an unlawfully overbroad social media policy.  Butler’s policy states that “[employees] will refrain from using social networking sights [sic] which could discredit Butler Medical Transport or damages [sic] its image.”   NLRB’s prior decisions have identified two instances where discipline based on an invalid and overbroad company rule can constitute a violation of National Labor Relations Act (NLRA) Section 8 (a)(1): (1) where the employee was disciplined for engaging in protected concerted activity; or (2) the conduct is not concerted but “touches the concerns animating Section 7.”  Under Section 7 of the NLRA, employees have the right to engage in concerted activity.  An employer can avoid liability under an unlawful policy by showing that the employee’s conduct interfered with the employer’s business operations and it disciplined the employee for the interference and not for violating an overbroad rule.  Here, the NLRB found that Norvell’s conduct amounted to protected concerted activity and by Butler already admitting that Norvell’s termination was based on a violation of company policy, it was foreclosed from claiming that interference with business operations was the reason for Norvell’s termination in an effort to avoid liability.

The NLRB, however, did uphold the termination of employee Michael Rice for violating the company’s social media policy by falsely claiming in a Facebook post that that his company vehicle had broken down because his employer failed to pay for maintenance.  A review of the Company’s maintenance records showed that Rice’s vehicle had not broken down on the day he made the post. The NLRB ruled that Butler’s decision to terminate Rice was lawful, even if the policy is overbroad, because his post did not constitute protected activity.  The Board further noted that even if the post could be found to be protected activity, “an otherwise protected communication ‘will lose protection of the Act if maliciously false, i.e., made with knowledge of their falsity or with reckless disregard for their truth or falsity.’”

NLRB Chairman Philip A. Miscimarra dissented to the NLRB’s ruling on the Norvell termination, finding that his Facebook post was not “concerted protected activity” and that his termination was lawful. Notwithstanding, the Butler decision is in line with recent NLRB precedent. However, this trend is expected to change soon.  Since 2015, the NLRB panel has been short of a full five-member panel with Democrats holding a majority.  Earlier this month, Republican nominee, Marvin Kaplan, was confirmed by the Senate along party lines, and another Republican nominee, William Emanuel, is also expected to be confirmed.  As a result, Chairman Miscimarra, who has been the lone dissenter in a series of NLRB decisions applying an expansive view of what type of conduct amounts to protected concerted activity, will likely become the majority voice on the board.  When this happens, employers could see a roll-back on the NLRB’s expansive interpretations of “protected concerted activity.”  Nevertheless, employers should use caution when disciplining employees because of their social media activities.


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