Online Forum Activity = Protected Concerted Activity

30 July 2018 Labor & Employment Law Perspectives Blog
Author(s): Kevin E. Hyde

Much can be (and has been) made about the newly constituted National Labor Relations Board overturning many precedents of the prior Board, which was largely appointed by President Obama. Nonetheless, even with a more “conservative” (i.e., pro-employer) Board, some employers still cross the line. In one recent case, it all came down to what an electric utility lineman said on the aptly named online forum, “Linejunk.”

The Petitioner, David Svoboda, was a lineman for an electrical utility co-op in Iowa. He progressed through the ranks, performing work that the NLRB administrative law judge said was indisputably “inherently dangerous.” Svoboda ultimately obtained a position doing GPS staking, where he used GPS to decide where electrical poles should be placed, a position that was outside the collective-bargaining unit.

Still, he remained concerned about issues affecting the safety of linemen. To express his concern, Svoboda participated in Linejunk, an online forum pertaining to linemen and electrical workers, a website and Facebook page with 65,000 likes. Svoboda responded to a “conversation starter regarding safety,” specifically dealing with crew size and the number of workers in the area. This was the only time Svoboda posted a comment on the Linejunk Facebook page. Svoboda testified that by making these comments, he was “advocating for better safety.” These comments pertaining to safety were “also nothing new to management or his co-workers,” as he had previously raised these concerns.

Fellow crew members, including the lead lineman, objected to Svoboda’s comments. Some crew members viewed Svoboda’s post as “throwing them under the bus.” Ultimately, Svoboda was terminated one week after his Facebook post. The decision maker stated that because of the “issue with the Facebook post,” as well as alleged attitude issues in prior years and how people reacted to the Facebook post, it was time for Svoboda to be terminated.

Svoboda complained to the NLRB. The administrative law judge and the Board found that Svoboda engaged in concerted protected activity for the purpose of mutual aid or protection and that he was discharged because of that activity. The Board ordered that Svoboda be reinstated with back pay and that the employer delete two of its policies in particular: one dealing with “Attitude, Spirit and Cooperation,” and a second dealing with “Personal Conduct.”

What are the lessons from the case? One, concerted activity does not even have to specifically identify the particular employee’s employer. Comments about the employer’s industry may be enough to merit protected status if there is a tie back to the employer. Two, the reaction of co-workers to a social media post can’t be the basis for an adverse employment decision. And finally, very general policies dealing with “attitude” and “personal conduct” should not be the basis to find a social media post a reason for discipline or discharge.

The moral of the story remains as it always does: Be careful when reacting to what an employee says on social media.

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