Labor & Employment Law Daily NLRB: Enforcing work rules to fire utility employee for his safety-related Facebook post was unlawful interference
Tuesday, July 24, 2018

NLRB: Enforcing work rules to fire utility employee for his safety-related Facebook post was unlawful interference

By Lisa Milam, J.D.

An electrical cooperative violated Section 8(a)(1) of the NLRA when it fired an employee after he posted comments in a Facebook forum that, in the employer’s view, displayed a “poor attitude” and riled coworkers. The Facebook comment at issue, made pursuant to an online discussion about safety concerns in the lineman industry, was clearly protected concerted activity; and even if it wasn’t, the employer separately violated Section 8(a)(1) by enforcing two work rules when it cited them as the basis for his discharge, thus rendering those rules unlawful (North West Rural Electric Cooperative, July 19, 2018).

“Linejunk” is a Facebook page (and website) for linemen and other workers in the electrical industry. Linejunk’s administrators boast that it’s “the most followed page in the industry” and “the premiere place to go if you are a lineman.” When a page administrator posted a safety inquiry on the page, the employee joined the discussion, responding with comments about safety issues in the industry as a whole. The comments irked some of his coworkers who were also on the Linejunk forum (they had “liked” the Facebook page), one of whom brought it to management’s attention. A week later, the employee was fired.

Protected activity. An ALJ found, and the Board agreed, that the employee’s conduct clearly fell within the protection of Section 7 when he made the Facebook post, and that his discharge for such activity constituted unlawful interference. The ALJ reasoned that the employee raised his safety concerns in a forum that included some of his coworkers and, as such, the comments were intended at least in part to induce group action by coworkers in support of those concerns. (Member Emanuel found it unnecessary to address this rationale, relying instead on the ALJ’s additional reasoning that the comments were directed at statutory employees of other employers too, and thus were aimed at improving terms and conditions for all employees in the industry.).

The ALJ also found the employee’s post addressing safety issues in the industry was “inherently concerted,” a finding the Board panel declined to address. On this point, Emanuel went a step further; he asserted that the Board’s “inherently concerted” line of cases warranted reconsideration anyhow.

In addition, the ALJ saw no evidence suggesting the employee’s comments fell outside the protection of the Act. The post was made outside of work and on nonworking hours, thereby having no impact on his own work, the work of his coworkers, or his employer’s operations. The employer contended that some of his coworkers were angered by his comments and no longer wanted to work with him after seeing them, but as the ALJ explained, that factor is “immaterial to the determination of whether an employer’s decision to discharge an employee was lawful.” Moreover, there was no evidence that any such interpersonal friction would have actually disrupted the employer’s operations, and even if there were such evidence, there was no indication this disruption was the real reason for the employee’s discharge.

Unlawful work rule enforcement. As the basis for discharge, the employer cited two conduct policies: one, a rule that admonishes “rude or surly conduct” and directs employees to use its grievance procedure to resolve complaints; the other a broad “personal conduct” rule stating that employees must comply with company rules and encouraging them to work with others to “promote the best interests” of the company. The Board adopted the judge’s finding that the employer unlawfully enforced the policies to restrict Section 7 activity when it cited them as the basis for the employee’s discharge, noting a manager’s testimony that the employee was fired based on the policies as well as evidence that a supervisor had told the employee, as he was being terminated, that the company had “policies in effect” prohibiting the Facebook post.

Facially unlawful? In applying the conduct policies to restrict Section 7 activity, the employer violated Section 8(a)(1), and thus rendered the policies themselves unlawful, the NLRB found, ordering the employer to rescind them. However, the Board did not determine whether the policies were facially unlawful as it would have no bearing on the remedy here. Nor did it address whether the discharge of the employee pursuant to the policies separately violated the Act.

Acknowledging that current Board law holds that “the application of a policy to restrict Section 7 activity renders the policy itself unlawful, and the remedy for such a violation is to order the employer to rescind the policy,” Emanuel grudgingly agreed with the holding, applying extant precedent “for institutional reasons.” He stressed his disagreement with precedent, though, and stated that “it should be reconsidered in a future appropriate case.” According to Emanuel, “a facially neutral rule remains facially neutral even if it is unlawfully applied, and ordering that the Respondent rescind a lawful rule is not an appropriate remedy.”

Stating the reason for discharge. A divided panel also agreed with the ALJ that the employer separately violated Section 8(a)(1) by coercively informing the employee he was being discharged for engaging in protected concerted activity (i.e., the Facebook post). Emanuel parted ways with his colleagues on this issue as well. In his view, “[m]erely advising employees of the reason for their discharge is ‘part of the res gestae of the unlawful termination, and is subsumed by that violation.’”

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