By Howard Wexler, Esq.
As recently reported on this blog here, here, and here, the NLRB has aggressively been trying to regulate the workplace implications of social media in both union and non-union workplaces alike. The NLRB’s recent decision in New York Party Shuttle, LLC, 359 NLRB No. 112 (May 2, 2013) is no exception and demonstrates that the NLRB is continuing its efforts towards “educating” employers that negative comments by employees on Facebook and other social media sites, which relate to the employees’ workplace, treatment and management, are protected activity and taking action against an employee for those comments can result in an unfair labor practice charge and liability.
The Charging Party, Fred Pflantzer, worked as a tour bus driver in New York City for a company called OnBoard Tours (“OnBoard”). Tour guides notified OnBoard each Thursday about their availability to work the following week, and their schedule was then set over the weekend. After several weeks on the job, Pflantzer, who previously worked for a unionized tour bus company called CitySights, started talking to some of his fellow drivers at OnBoard about the possibility of forming a union. Some of the employees that Pflantzer approached complained to OnBoard that he was “bothering them about getting a union.” After the holiday season OnBoard stopped putting Pflantzer on the schedule. This change resulted in his: (1) posting a message on Facebook on a site called NYC Tour Guides, which is a closed site accessible only to New York City tour guides who have been invited to the site; and (2) sending an e-mail to his former co-workers at CitySights on February 11, 2012. In sum and substance, the information contained in the Facebook post and e-mail were essentially the same and stated in relevant part:
Believe it or not CitySights is a worker’s paradise compared to OnBoard! At OnBoard you will receive no health insurance, sick days, vacation days or one single benefit. You will ride around on unsafe buses, without the benefit of a PA system, or sometimes even a seat.
There is no union to protect you; you are subject to arbitrary disciplinary actions and out-right dismissal without recourse. If the company were to be sold, which is what I believe will happen [sic] there is no successor clause to protect your jobs.
Needless to say, I started to agitate for a union. Guess what happened, I stopped being called for work. I disappeared off the work sheet, not fired outright, but in effect kicked to the curb.
As you all well know, we have a right to organize in this country, a right protected by the US Government.
I am currently at the NLRB brining charges against this dysfunctional company.
So before you jump ship, talk to me. I’ll be glad to fill you in on all the gory details.
The Board’s Decision
The NLRB affirmed the decision of Administrative Law Judge Raymond P. Green who held that OnBoard terminated Pflantzer in violation of Section 8(a)(3) and (1) of the NLRA when it failed to give him any tour guide assignments after he publicized his union organizational activities and criticized OnBoard in an e-mail and Facebook posting. The NLRB held that Pflantzer’s statements, even if not directed to his co-workers at OnBoard, nonetheless constituted union activity as they were an “obvious continuation of Pflantzer’s prior organizational activity, which was known to the Respondent [OnBoard].” That activity included an e-mail to OnBoard’s tour guides that was similar to the February 11th e-mail and Facebook message. While admitting that its decision to stop giving Pflantzer assignments would not have been made “but for” this Facebook post and e-mail, OnBoard argued that his statements exceeded the grounds of protected speech as they were libelous and “impermissibly disparaging.” The NLRB rejected this defense noting that virtually all of the accusations were true, and therefore, could not be deemed to be libel.
While the outcome of this case is not much of a surprise given the nature of Pflantzer’s statements and OnBoard’s admissions during the hearing, what is noteworthy is that neither Pflantzer’s Facebook post nor his e-mail were directed to his coworkers at OnBoard yet they were both found to constitute protected speech under Section 7. Despite the fact that he did not specifically direct his statements to his co-workers, the Board held that, “even if directed to tour guides of other New York City companies” Pflantzer’s Facebook post and e-mail message were nonetheless protected “union related activity.” With more and more individuals using Facebook, Twitter, Instagram, etc. each and every day, we may expect more decisions like this one in the future as the Board continues to expand the scope of employee rights in the 21st Century workplace.