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Customer Service Reps' Facebook Rants About Treatment by Customers Were Concerted and Protected: NLRB General Counsel's Office
Practical Law Legal Update w-009-2304 (Approx. 8 pages)
Customer Service Reps' Facebook Rants About Treatment by Customers Were Concerted and Protected: NLRB General Counsel's Office
by Practical Law Labor & Employment
| Published on 24 Jul 2017 • USA (National/Federal) |
The Office of the General Counsel of the National Labor Relations Board (NLRB) has released an advice memorandum concluding that employees who complained on a private Facebook page about treatment by customers were engaged in protected concerted activity and that their discharge violated Section 8(a)(1) of the National Labor Relations Act (NLRA).
On July 7, 2017, the Division of Advice of the NLRB's Office of the General Counsel released an advice memorandum issued on December 18, 2015, concluding that three employees complaining on a private Facebook page about treatment by customers were engaged in protected concerted activity. The Division of Advice further concluded further that their employer violated Section 8(a)(1) of the NLRA by discharging the three employees for their protected activity.
Background
In 2015, several Premera Blue Cross of Washington customer service representatives began discussing on a private Facebook page their recent unpleasant interactions with Premera customers and their customers' problems with health savings account cards and merchant locations:
"Employee 1: I think to myself….as this b word is complaining about having to repeat over and over (to me)…you're soooo lucky I have enough respect for myself and my boss too NOT tell you to go f your own rude crotchety douchebag SELF.
Employee 2: …had one of those today because merchant location couldn't take the HSA payment card. Soooo rude screaming at me (because it's my fault) and then grabbed the phone and said sorry for all the attitude you just received. And then screaming in the background "I ain't giving no mother fu**ing attitude" Yes I set up that point of sale system at their office through the credit card company.
Employee 1: Its our faultl Its your fault the card ist accepted and my fault b words can't communicate!! It could be worse i guess
Employee 3: These made my day.
Employee 2: I had a guy that said I changed my address 8 months ago and was told it was changed. I have 3 minutes to get this resolved. Someone is lying to me about my address actually being changed and I never got my HSA card and I want a manager to get it over nighted. Ok well with 3 minutes time I will not be able to get a supe on the line and get a card over nighted. So I'll call you back once we have the request made for an overnight you prick.
Employee 3: What a freaking dick!! People were just mean today!!!! Tellto takecard and shove it where the sun doesn't shine! And don't be soooooo rude…gess!!
Employee 4: Wow glad I wasn't the only one with mean people.
Employee 2: All dayyyy long…!! Lol.
Employee 4: Yep from 730am-8pm today, just wished today would have been nice to everyone day. Not take it out on everyone day, lol."
One Premera employee complained on the company's ethics line about the Facebook exchange. The individual included screen shots showing the posts, comments, and likes on the initial post. Although it was unclear whether any customers saw the posts, Premera:
- Terminated the employment of Employees 1, 2, and 3 for violating its core values policy.
- Warned several other employees who liked or commented on the posts.
Outcome
The Division of Advice concluded that Premera violated the NLRA when it discharged Employees 1, 2, and 3 because the employees:
- Were engaged in protected concerted activity when they posted their Facebook comments.
- Did not lose their NLRA protection even though their Facebook comments were about customers and not their employer.
The Employees Engaged in Protected Concerted Activity When They Complained About Customers on an Employee Private Facebook Page
The Division of Advice noted that for non-union-related employee conduct to constitute protected concerted activity under Section 7 of the NLRA, it must be:
- Engaged in for the purpose of mutual aid or protection (which arises when "the employee or employees involved are seeking to improve terms and conditions of employment or otherwise improve their lot as employees.")
- Concerted (which occurs when an employee engages in activity "with or on the authority of other employees, and not solely by and on behalf of the employee himself.")
The Division of Advice held (in conclusory fashion) that:
- The employees' Facebook comments were for mutual aid or protection because:
- they concerned difficult employee interactions with customers, and the NLRB has held that employee complaints about customers are protected because they relate directly to employee working conditions (see Los Angeles Airport Hilton Hotel & Tower, 354 N.L.R.B. 202, 214 (2009), adopted by three member panel, 355 N.L.R.B. 602 (2010), enforced in relevant part, 665 F.3d 1295 (D.C. Cir. 2011). An employer need not have direct authority over the challenged conditions, if it can be expected that the employer could influence those conditions (see Nellis Cab Co., 362 N.L.R.B. No. 185, slip op. at 2, 10 (Aug. 27, 2015); and
- the employees were trying to protect themselves from poor working conditions that arise when customers are dissatisfied with employer business practices (NLRB v. Washington Aluminum Co., 370 U.S. 9, 17 (1962)).
- The employees' Facebook comments were concerted because:
- numerous employees posted about shared concerns regarding their working conditions; and
- the NLRB has recognized that employees complaining together about working conditions take an "indispensable preliminary step to employee self-organization" and are protected as long as the complaints have "some relation to group action in the interest of the employees."
The Employees Did Not Lose Protection Under the NLRA
The Division of Advice noted that:
- Under NLRB v. Electrical Workers Local 1229 (Jefferson Standard) and Linn v. Plant Guards Local 114, protected communications relating to a labor dispute lose protection only if "they are so disloyal, reckless, or maliciously untrue" as to lose NLRA protection (Triple Play Sports Bar & Grille, 361 N.L.R.B. No. 31, slip op. at 3-5 Aug. 22, 2014), enforced, 629 F. App'x 33 (2d Cir. 2015) (citing 346 U.S. 464 (1953); 383 U.S. 53 (1966)).
- In Jefferson Standard, the US Supreme Court held that employee handbills were unprotected because they:
- were made early in the life of the company's business;
- were unrelated to an active labor dispute; and
- constituted a "sharp, public, disparaging attack" on the quality of the company's product and business policies that was designed to harm its reputation and income.
(Jefferson Standard, 346 U.S. at 472.) - Disparaging an employer's product forfeits the NLRA's protections sooner than airing potentially highly sensitive issues (Valley Hosp. Med. Ctr., 351 N.L.R.B. 1250, 1252 (2007), enforced, 358 F. App'x 783 (9th Cir. 2009)).
- A public statement may be unprotected if it:
- is flagrantly disloyal;
- is wholly incommensurate with any employee grievances; and
The Division of Advice held that:
- The Facebook comments related to a labor dispute under Section 2(9) of the NLRA because they concerned a controversy regarding mistreatment by customers, which is a term and condition of employment.
- Unlike the handbills in Jefferson Standard, the employees' Facebook comments:
- concerned a long-time business, not one that was in its initiation phase;
- were not calculated to harm Premera;
- were made on a private social media page that was not intended for public access;
- did not disparage Premera's products;
- were not maliciously untrue;
- were mostly exaggerations or indirect statements that could not be factually challenged; and
- were not made with knowledge of falsity.
- The employees' comments retain NLRA protection under a totality of circumstances test (see Pier Sixty, LLC, 362 N.L.R.B. No. 59, slip op. at 2 (Mar. 31, 2015)). Specifically, the protections remained because:
- the comments were on a private Facebook page;
- the subject was working conditions; and
- the postings did not disrupt Premera's business operation.
- The employees' comments also did not render them unfit for further service. Although the language in some of the Facebook posts was vulgar, the employees did not encourage violence (St. Margaret Mercy Healthcare Centers, 350 N.L.R.B. 203, 204-05 (2007), enforced, 519 F.3d 373 (7th Cir. 2008)).
This advice memorandum is not binding precedent from the NLRB. However, it provides insights concerning:
- Which kinds of unfair labor practice allegations the NLRB General Counsel is likely to prosecute.
- What liability theories the NLRB General Counsel is developing and pursuing.
- How the NLRB General Counsel is extending, minimizing, combining, or reimaging precedent to support those allegations and liability theories.
The current General Counsel's four-year term ends in November 2017. The new General Counsel, who will be nominated by President Trump in the coming months, may not analyze this set of facts as the President Obama appointed General Counsel, but employers should recognize that:
- The General Counsel's Office will likely be staffed by the same personnel who endorse and carry-out this agenda.
- Until the General Counsel affirmatively alters the office's prosecutorial agenda, NLRB regional directors, regional attorneys, and others acting as counsel for the General Counsel will continue to carry out current enforcement activities using the current General Counsel's liability theories.