NLRB Short-Circuits Electrical Company’s Decision to Terminate Employee for Facebook Posts

On July 19, 2018, the National Labor Relations Board ordered an electrical company in Iowa to reinstate and provide back pay to a utility pole worker who had been fired after complaining on Facebook about the employer’s safety policies. In so doing, the Board affirmed Administrative Law Judge Thomas Randazzo’s September 28, 2016 ruling that the employer had violated the National Labor Relations Act by firing the utility pole worker over what the Board held to be protected concerted activity.

North West Rural Electric Cooperative is an electricity distribution cooperative based in Orange City, Iowa which purchases electricity and delivers it to customers in a four-county area in the northwest part of the State. The Company has four line crews, each of which employs electrical workers or “linemen” who are responsible for the day-to-day maintenance of the electrical distribution system.

“Linejunk” is a Facebook page created in January of 2012 with the stated mission of bringing awareness to the lineman trade. Linemen and other workers in the electrical industry regularly post concerns related to their trade on this page. On December 1, 2014, a Linejunk Facebook page administrator posted a question to the Linejunk Facebook community on behalf of someone who claimed to be a lineman with 36 years’ experience, asking why accidents in the lineman trade were so prevalent. A lineman by the name of David James Svoboda posted a response in which he was heavily critical of the Company’s management and his crewmates’ level of experience and discipline.

Mr. Svoboda’s posted comments angered some of his coworkers who were also on the Linejunk page. One of these coworkers brought the social media post to management’s attention. A week later, the employee was fired for supposedly violating two policies: the “Attitude, Spirit and Cooperation Policy,” and the “Personal Conduct Policy.” The former admonished “rude or surly conduct” and directed employees to use its grievance procedure to resolve complaints, while the latter stated that employees had to comply with Company rules and encouraged them to work with others to “promote the best interests” of the Company.

As mentioned, a Board Administrative Law Judge found that Mr. Svoboda’s termination unlawfully interfered with his rights under Section 7 rights of the National Labor Relations Act. The ALJ’s rationale was that the employee had 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. The ALJ held that the lack of popularity of the post among Mr. Svoboda’s coworkers was “immaterial to the determination of whether an employer’s decision to discharge an employee was lawful.” The ALJ also found 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.

On appeal, the Board adopted the ALJ’s finding that the Company had unlawfully applied its conduct policies to restrict Section 7 activity when it cited them as the basis for Mr. Svoboda’s termination, 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. The Board did not go so far as to determine that the policies themselves were unlawful, however, but only that they were applied unlawfully.

The takeaway from this case is that employers would be well-advised to monitor their policies, to ensure that they do not contain language that curtails their employees’ rights to advocate for their safety or well-being, including through social media. Moreover, employers should ensure that even facially-neutral policies that do not contain such language are not applied or implemented in a way that has a chilling effect on employees’ right to speak out for their mutual aid and protection.

This article is a publication of MWH Law Group LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm.

CONTACT ATTORNEY CARLOS R. PASTRANA

CARLOS R. PASTRANA
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735 N. Water Street, Suite 610, Milwaukee, WI 53202
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E: carlos.pastrana@mwhlawgroup.com
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