Labor & Employment Law Daily NLRB: Employer engaged in unlawful surveillance of private employee Facebook group
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Friday, November 1, 2019

NLRB: Employer engaged in unlawful surveillance of private employee Facebook group

By Ronald Miller, J.D.

The Board rejected the employer’s contention that it could not find surveillance in this instance because the employer based no adverse employment action on the information it obtained and because employees were not aware of the surveillance.

An employer engaged in unlawful surveillance of a private employee Facebook group dedicated to discussions about unionization, ruled a three-member panel of the NLRB. The employer repeatedly solicited and received reports from an employee about the group’s membership and messages posted on the group’s Facebook page. Further, the Board concluded, because the employer did not rely on its stated reasons for discharging an employee, it failed to establish that it would have discharged him even in the absence of his union activity. However, the Board remanded complaint allegations that the employer violated Section 8(a)(1) by maintaining its social media and unacceptable behavior policy and by directing its employees to refrain from discussing the closure of its Dallas office (National Captioning Institute, Inc., October 29, 2019).

The squeaky wheel. In 2016, the union began an organizing campaign among the employees at two of the employer’s three offices—Dallas, Texas, and Santa Clarita, California. In early May, shortly after the employer learned that employees were in contact with the union, the employer’s president searched an in-house chat platform for conversations by Janice Hall, a union supporter. According to the president, she was initially searching for evidence of a rumor that Hall and a coworker were planning to quit and set up a competing business with one of its clients. Her search did not uncover information regarding any such plan. Instead, she found messages by Hall vocally supporting the union and holding herself out as a leader of the organizing campaign.

In a log entry, Hall complained about having to commute to the office to cover for a coworker who had recently undergone surgery. She wrote in detail about the surgery and asserted that the employer had underestimated the coworker’s recovery time. She complained that she now worked full-time in the office but without the higher in-office salary. She also revealed that she attempted to learn how to connect her personal laptop to the employer’s network—a violation of policy. The president sent several log entries to the vice president for HR.

Hall was known as a squeaky wheel who tenaciously pursued work-related issues, a fact with which the president and VP were well acquainted. On June 12, the VP described Hall’s repeated requests and complaints as “insolence,” and asked the president for guidance on what disciplinary action could be taken to send the message that she needed to stop behavior that attempted to undermine management’s authority.

Written warning. On June 13, another employee complained to the VP that Hall had inappropriately discussed the coworker’s medical condition on the chat platform. Two days later, the employer issued Hall a written warning for violating the employer’s “Unacceptable Behavior Policy” by accusing management of dishonesty and acting in bad faith, complaining in an aggressive and hostile manner, and spreading inaccurate and personal information about employees. In addition, the warning included a copy of the employer’s Telecommunications and Computer Systems policy, which stated that connecting a personal device to the employer’s network without authorization was prohibited.

On June 28, the president sent an email marked confidential to employees about the union organizing drive. It referred to the union as an “outside force” attempting to intervene between the employer and its employees. The email listed a number of problems with unionization, such as mandatory dues and increased bureaucracy, that would threaten the employer’s ability to reinvest its revenue in its own company and employees.

Facebook posts. Meanwhile, in late May, another employee reported to a manager that at least one employee had posted pro-union articles on Facebook. That information was forwarded to the VP. On June 23, the employee again contacted the manager and reported that coworkers had been in contact with the union and formed a private Facebook group. The manager asked for additional information and was provided the names of the group’s administrators and its 18 current members. The president was furious about the group, particularly the involvement of two supervisors.

Office closure. On June 30, the president notified employees by email of a meeting regarding the future of its Dallas facility. During the meeting, she announced the closure of the Dallas office. The employees were asked to keep the news to themselves.

Employee Mike Lukas was scheduled to be off, so he called into the meeting. He had his phone on speaker and a former employee, Michael Baker, was with him at the time of the call. Baker sent a text to a supervisor reacting to the meeting. The president was informed that Baker and another individual knew about the meeting. She followed up with an email to employees requesting that they keep the information confidential while the employer notified its clients and vendors. The next day, the president learned that Lukas has allowed Baker to listen to the call.

Loyalty warning. On July 11, union supporters issued a lengthy response to the president’s union email. It was signed by 10 employees, including Lukas. Twelve hours later, Lukas was issued a written warning for breach of duty of loyalty to the employer for allowing the Baker to listen in on a company confidential telephone conference. The employer did not investigate whether Lukas or Baker revealed the news of the closure to anyone.

On July 12, a manager sent an email to the president regarding the employees who had signed the union letter. The report included information on employees’ union support, reactions to the closure announcement, and evaluative comments regarding individual signers’ attitude, performance, and character.

Following the closure announcement, the employer provided its Dallas employees information about transferring to the remaining offices or to become full-time remote employees. Subsequently, the employer issued letters to Hall and Lukas rejecting their applications for full-time remote work. Meanwhile, throughout July and August, the employer continued to monitor employees’ conversations on the chat platform for references to the union.

Work rules. The Board remanded complaint allegations that the employer violated Section 8(a)(1) by maintaining its social media and unacceptable behavior policy and by directing its employees to refrain from discussing the closure of the Dallas office. The only evidence of the unacceptable behavior policy was the written warning to Hall. Moreover, there was no evidence that Hall’s warning was seen by any other employee. Accordingly, the Board remanded the allegations regarding those policies and directed the administrative law judge to reopen the record, if necessary, and to prepare a supplemental decision.

Surveillance. However, the Board found that the employer engaged in unlawful surveillance of the employees’ Facebook group when it repeatedly solicited and received reports from an employee about the membership of the group and messages posted on the group’s Facebook page. The employer encouraged the employee to report on a private, invitation-only Facebook group dedicated to discussions about unionizing its employees. Further, the Board rejected the employer’s contention that it could not find surveillance in this instance because the employer based no adverse employment action on the information it obtained and because employees were not aware of the surveillance.

Unlawful discipline Next, the Board concluded that the employer violated Section 8(a)(3) when it issued a written warning to Lukas. The Board found that the General Counsel satisfied his initial burden by showing that the employee engaged in protected activity and that the employer was aware of that activity. The employee’s name had been included in a list of members of the Facebook group and an email from union supporters responding to employer’s union email, and he used a union logo.

As to the third element, the Board noted the employer’s unlawful surveillance of the Facebook group, the employer’s assessment of the employee became less favorable after it became aware of his union support, and discipline of the employee came just 12 hours after he was identified as a signatory on the union email. Moreover, the employee was disciplined for violating a confidentiality requirement that had not yet been imposed, and it never investigated whether Lukas or Baker revealed the closure news to anyone.

Unlawful discharges. The Board further found that the employer violated Section 8(a)(3) by discharging Lukas. Here, the Board agreed that Lukas’s discharge was unlawful because the employer relied on its unlawful discipline of him to justify his discharge. The Board rejected the employer’s contention that it decided not to retain employees in the fourth performance quartile. Rather, the Board noted that the employer articulated no retention criteria when it invited employees to apply to work remotely. It was approximately six weeks after announcing the Dallas office’s closure that it announced the retention criteria.

Finally, the Board remanded allegations that the employer unlawfully disciplined Hall. The ALJ dismissed allegations that Hall was unlawfully disciplined, finding that she would have been disciplined for disclosing a coworker’s medical information even in the absence of her protected conduct. The Board found that the lawfulness of Hall’s discipline was intertwined with the lawfulness of the unacceptable behavior policy. On the other hand, the Board agreed with the ALJ that the employer unlawfully discharged Hall because of her support for the union organizing drive. The employer discharged Hall, an experienced remote worker, while retaining two employees who had performance issues, despite its stated goal of seeking to retain employees who could successfully work remotely.

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