Another Social Media Decision from the NLRB
By Kelly A. Hayden, JD, Chief Legal Counsel
Published August 8, 2017
On July 27, 2017, the National Labor Relations Board (NLRB) issued a decision in yet another case involving employee Facebook posts. The case, Butler Medical Transport, LLC, comes with mixed results for employers.
In October of 2012, a disgruntled former employee posted on Facebook that he believed his termination from the ambulance transport service was unfair. Norvell, a current Butler employee, replied to the post stating: “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court…You could contact the labor board too.” An anonymous source took a screen shot of the post and Norvell’s comment. Both were submitted to human resources. Norvell was subsequently terminated for violating a company policy that prohibited employees from using social media to discredit or damage the company.
In January of 2013, another Butler employee, Rice, posted the following on Facebook: “Hey everybody!!!!! IM Fu**** BROKE DOWN IN THE SAME Sh** I WAS BROKE IN LAST WEEK BECAUSE THEY DON’T WANTA BUY NEW SH**!!!! CHA-CHINNNGGGGGG CHINNNG”—at Sheetz Convenience Store. As with Norvell’s post, Rice’s post was submitted to human resources. An investigation revealed that Rice’s vehicle was not broken down on the day of the post nor was it serviced. Rice attempted to defend himself by stating that he was referring to his girlfriend’s car that broke down, but his defense was not accepted and he was also terminated for violating the company’s policy.
Both employees filed charges of unfair labor practices that were considered by an Administrative Law Judge (ALJ) and eventually made their way to the NLRB. The Board affirmed the ALJ’s finding that Norvell’s termination was improper under Section 8 (a) (1) of the National Labor Relations Act (NLRA), as Norvell was engaging in protected, concerted activity when he discussed a former employee’s discharge and advised him of a potential remedy. The Board also found that the post was for the “mutual aid and protection” of employees because the discharge was of potential concern to all employees, the employee asked for support and Norvell was involved in a “common cause” with fellow employees.
With respect to Rice, the Board upheld his termination, stating that his post was not for “mutual aid and protection.” (Rice likely defeated his own argument by stating in the investigation that he was referring to his girlfriend’s car and not the company’s ambulance.) Further, his post was “maliciously false” because his vehicle did not break down on the day of the post.
On a final note, the company’s social media policy was held to be “overly broad.” (The company admitted this during the proceedings.) Employers should be aware of numerous guidelines concerning social media policies that must be adhered to for the policy to be considered lawful under the NLRA. For example, employees have a right under the NLRA to be critical of their employers on social media when those criticisms pertain to protected, concerted activity. Therefore, Norvell’s termination was unlawful. However, employees do not have a right to engage in malicious behavior or spread lies about the employer, which is why Rice’s termination was lawful.
Wondering if your social media policy is in line with current NLRA guidelines? Management Association members can view our sample Social Media Use Policy in the Forms And Sample Documents section of our website. Wondering if you can terminate an employee for social media activity? Our Legal Department is available to assist members at 800-448-4584 or firstname.lastname@example.org.