As my family, friends, coworkers, Facebook contacts, or anyone who has ever talked to me for five minutes knows, I am a die-hard fan of the Pittsburgh Steelers. I attribute this largely to the happy circumstance of starting my professional career with the National Labor Relations Board in Pittsburgh in August 1974, just as the Steelers were beginning their incredible run of Super Bowl success that led to four championships in six years. As a result, it was mostly with my personal and rooting interests that I reviewed the stories regarding James Harrison’s interview in the Men’s Journal Magazine and his comments about NFL Commissioner Roger Goodell. All of the sports radio talk shows are filled with discussions regarding his remarks and the possibility that he will be suspended or fined as a result of them. While much of the discussion has focused on the narrow question as to whether the Commissioner or the Steelers have the authority to discipline Harrison for comments made while there is no collective bargaining agreement in place and the NFL has locked out the players, I want to focus on another issue that I have not seen discussed elsewhere.
Many people know that the National Labor Relations Act (“NLRA”) protects the rights of employees to engage in union activity, but it also protects employees if they engage in concerted activity involving matters relating to wages, hours, or other terms and conditions of employment. In a case decided in 1965, the 7th Circuit Court of Appeals noted that an employee’s right to engage in protected concerted activity permits “some leeway for impulsive behavior.” NLRB v. Thor Power Tool Co., 351 F.2d 584 (7th Cir. 1965). In that case, during a tense meeting with management regarding a grievance, an employee was terminated because he called an official a “horse’s ass.” The NLRB and the Court found that, given the context of the discussion that preceded it, the employee did not lose his protection because of the use of this obscenity.
In a much more recent case, Stanford Hotel, 344 NLRB 558 (2005), the NLRB found the discharge of an employee unlawful, despite the fact that he had loudly called the hotel’s general manager a “f —ing son-of-a-b—-.” During Legal Awareness Training that we regularly conduct for our clients, I use scenarios and exercises that include these types of fact patterns to illustrate the extent of NLRA protection.
In the Stanford case, the Board explained that the following factors will be examined to determine whether the conduct is sufficiently egregious to remove it from the protection of the Act:
1) The place of the discussion;
2) The subject matter of the discussion;
3) The nature of the employee’s outburst; and
4) Whether the outburst was in any way provoked by an employer’s unfair labor practice.
It is generally agreed that Harrison’s anger towards Commissioner Goodell is motivated by the decision of the Commissioner last year to levy substantial fines against players who hit other players in ways the Commissioner deemed inappropriate within the context of the football game. Harrison was certainly not alone in his displeasure with the Commissioner’s actions, and numerous players spoke up about the issue at the time and have continued to do so since. The issue of fines for alleged workplace misconduct is unquestionably a term or condition of employment. Harrison could also argue that his anger toward Commissioner Goodell, which comes across vividly in the excerpts of the article published so far, is motivated by the actions of the NFL in locking out its players. Clearly, however, the public nature of Harrison’s comments would weigh against a finding that they are legally protected.
It is not my intent here to resolve the issue regarding the protected nature of Harrison’s comments, but to simply raise an issue that has not been previously discussed. I would welcome any comments that others may have regarding the matter.
This article is authored by attorney Thomas R. Davies and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.
Share on Facebook
Yikes, Judge Says Employer Can’t Ban the Use of Social Media During Company Time
by HDlawblog Posted: Friday, 11/16/2012A National Labor Relations Board (“NLRB”) administrative law judge (commonly referred to as an ALJ) recently directed an employer to remove a provision from its social media policy that prohibited employees from using social media during “company time,” on the basis that such a prohibition violated employees’ rights under the National Labor Relations Act (“NLRA”).
In the EchoStar Technologies, LLC case, an employee challenged two provisions in the company’s updated employee handbook that related to the company’s social media policy. Specifically, the employee challenged the prohibition against making disparaging or defamatory comments about the company and the prohibition against employees using social media with company resources during company time.
The employee argued that such prohibitions violated Section 8(a)(1) of the NLRA, which bans employer interference with an employee’s Section 7 rights. Section 7 of the NLRA protects employees’ rights to engage in unionization activities and the right of nonunion employees to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. The NLRB general counsel’s office later filed a complaint in the case.
In ruling that both challenged provisions should be removed from the company’s employee handbook, the ALJ noted that this case centered around whether a reasonable employee would view the company’s social media policy as chilling unionization activities or other protected concerted activities. The test for making such a determination is whether an employee’s Section 7 rights “suffered a reduction or inhibition” as a result of the policy. This test is applied with the reasonable person standard, meaning the determination considers how a reasonable person would react to the prohibition, not whether the employees involved actually felt threatened.
The ALJ struck down the ruling banning “disparaging comments” on social media sites on the grounds that it was similar to another case where the NLRB did not allow a rule prohibiting “derogatory” comments about the employer. In Southern Maryland Hospital Center, 293 N.L.R.B. 1209, 132 LRRM 1031 (1989), the NLRB explained that such a ban is problematic because “an assertion that an employer overworks or underpays its employees, which would constitute the most elementary kind of union propaganda, could fairly be regarded as ‘derogatory’ toward the employer.” Accordingly, in EchoStar, the ALJ held that the prohibition against disparaging comments intruded on employees’ Section 7 activities and ordered the prohibition removed from the employee handbook.
Unfortunately, the ruling in EchoStar did not shed much light on why the ALJ struck down the employer’s prohibition against the use of social media on company time. Nevertheless, the ALJ made it clear that such a ban also needed to be removed from the employer’s handbook. We can only surmise that the ALJ agreed with the general counsel’s argument that essentially said the ban was too broad because it could be interpreted as prohibiting employees from participating in social media activities through their own devices and during their breaks, lunch, and before and after work. Notably, the general counsel’s office pointed out that the phase “company time” is ambiguous and had already been found to be problematic in other cases because it does not let employees know that protected activities may occur on breaks, during lunch and before or after work. Although the employer argued that it had a huge problem with employees using social media for personal matters during work hours its argument was to no avail.
Lesson for Employers: Social media policies raise a host of issues. Because overly broad restrictions on employees’ social media use might be deemed to violate the NLRA, employers should seek the assistance of an attorney when crafting their social media policy. The attorneys at Harmon & Davies, P.C. are here to assist you with all such needs.
This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.
Posted in Labor & Employment, NLRB, Social Media | No Comments »