For this project begin by viewing the following information including the articles
provided. Then write a 5 page paper then provide supporting power points for each
topic.
Facebook Vent Against Supervisor Not Grounds for Firing, Retrieved
from http://www.carbonated.tv/biztech/facebook-vent-against
Facebook Vent Against Supervisor Not Grounds For Firing
"(CNN)
In what could prove to be a precedent-setting case, the National Labor Relations Board has
issued a complaint against a Connecticut company for firing an employee after she posted
critical, derogatory comments about her supervisor on Facebook.
The company, ambulance service American Medical Response, says emergency medical
technician Dawnmarie Souza was fired because of ""multiple, serious complaints about her
behavior,"" not because she took to a social networking site to describe her supervisor in various
unflattering terms, among the mildest of which was comparing the supervisor to a psychiatric
patient.
The labor board, a federal agency that oversees union elections and investigates claims of unfair
labor practices, accuses the company of illegally terminating Souza and denying her access to
union representation during an investigatory review.
The labor relations board argues that workers’ criticism of their bosses on social networking
sites like Facebook is generally ""a protected concerted activity.""
""You are permitted to talk about terms and conditions with employees or anyone else, it’s public
because you are protected under the National Labor Act,"" says Jonathan Kreisberg, the board’s
regional director in Hartford, Connecticut.
Kreisberg says that in addition to describing her supervisor in unflattering and sometimes vulgar
terms on her Facebook page, Souza also wrote about ""how the company allows a 17 to be a
supervisor."" The 17 reference is the company’s jargon for a psychiatric patient, Kreisberg says."
Parexel International, LLC, 356 NLRB No.82 (2011). Retrieved
fromhttp://www.youtube.com/watch?v=cT5hljA3WCU
Use this article to prepare your power points with all of the data
No concerted protected activity, no problem—the NLRB recognizes “pre-emptive
strike” retaliation (March 14, 2011). Retrieved
from http://www.martindale.com/labor-employment-law/article_ObermayerRebmann-Maxwell-Hippel-LLP_1255826.htm
No Concerted Protected Activity, No Problem–The NLRB Recognizes "PreEmptive Strike" Retaliation
by: Obermayer Rebmann Maxwell Hippel LLP – Philadelphia Office
March 17, 2011
Previously published on March 14, 2011
If employers were concerned that the newly constituted National Labor Relations Board (the “NLRB”) under
the Obama Administration would continue to expand employee rights under the National Labor Relations Act
(the “Act”), those concerns were recently validated. In Parexel International, LLC, 356 NLRB No. 82 (January
28, 2011), the NLRB held that an employer’s discharge of an employee was unlawful despite the fact that the
employee had not actually engaged in any protected activities. The NLRB found that an employer violates
the Act simply by discharging an employee in order to be certain that she does not exercise rights protected
by the Act.
In general, an employer commits an unfair labor practice in violation of the Act by interfering,
restraining or coercing an employee in exercising their rights under Section 7 of the Act. Section 7 provides,
in relevant part, that “an employee shall have the right to . . . engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection.” For over two decades, the NLRB and
courts have held that “concerted activities” protected by Section 7 are those that are engaged in with or on
the authority of other employees, and not solely by and on behalf of the employee herself.
In Parexel International, LLC, the employer discharged one of its employees after she
complained to her supervisor about the wages she was being paid, as compared to the wages that another
employee received for performing the same job. The discharged employee filed an unfair labor practice
charge with a regional NLRB office claiming that she had been discharged in retaliation for exercising her
rights under Section 7 of the Act.
In December 2007, after a hearing, an NLRB administrative law judge determined that the
employer’s discharge of the employee did not violate Section 7 of the Act because there was no evidence
that the employee’s complaint about her wages was for the “mutual aid or protection” of her co-workers or
that she had complained to initiate or induce group action. There was also no evidence that she intended to
engage in such activities. However, although the employer presented evidence that the employee’s
complaint was the “last straw” in a progression of employee disciplinary issues, the administrative law judge
determined that the employer would not have terminated the employee but for her complaint about her
wages.
On appeal, the NLRB declined to address whether the employee actually had engaged in
protected Section 7 conduct. In a 2-to-1 decision, the NLRB found that the employer’s discharge of the
employee amounted to a “pre-emptive strike” to prevent the employee from being able to engage in
protected Section 7 activities. For the NLRB, it was enough that the employee’s discharge was triggered by
the complaint she made to her supervisor about her wages. In support of its decision, the NLRB noted that
simply maintaining a rule that prohibits the discussion of wages violates the Act. The NLRB went on to state:
If the maintenance of such a rule violates the Act, a fortiori, the discharge of an employee to prevent her
from engaging in such conduct violates the Act. When an employee is discharged on that basis, both she
and the employees with whom she would have spoken are denied the opportunity to compare their wages
and other terms of employment to determine whether to take further concerted activity.
In essence, and perhaps most importantly, the NLRB decided that the employer discharged the employee not
for what she actually did (or even for what she intended to do), but for what she might do at some future
point in time.
As an employer, attempting to protect against or avoid legal risk related to what an employee might do in
the future can be a disconcerting concept. It is therefore imperative that, as the NLRB expands the scope of
the Act’s protections for employees, all employers (union and non-union) tread lightly and carefully in
crafting and enforcing workplace policies and procedures. Obermayer attorneys are available to answer your
questions regarding how this latest NLRB decision may impact your business.
The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This
document is intended for informational purposes only and is not legal advice or a substitute for consultation
with a licensed legal professional in a particular case or circumstance.
Also review—Employees recording & publicizing management’s union communications,
retrieved from http://www.laborrelationstoday.com/2013/10/articles/corporate-campaigns/not-atrick-or-treat-employees-are-recording-and-publicizing-managements-union-campaigncommunications/
Not a Trick or Treat: Employees are Recording and
Publicizing Management’s Union Campaign
Communications
By Brennan W. Bolt on October 31, 2013Posted in Corporate Campaigns, NLRA, NLRB Decisions, Representation Elections, Social
Media, Unfair Labor Practices, Unions
In a public relations nightmare for a Georgia
employer, Gawker.com published yesterday an article analyzing a 21minute audio recording (and the recording itself) consisting primarily of
a meeting between management and employees to discuss an upcoming
union election and what the employees could expect in the next month
leading up to the election. This was Gawker’s lede:
When a union attempts to organize a workplace, the management
inevitably tries to talk workers out of it. Usually, that happens out of the
public eye. But at one workplace, an audio recorder was running.
It is rare for a recording like this to surface, but that is likely to change given the proliferation of
smart phones that make recording and publishing conversations and meetings such as this very
easy. The article does not state how the recording was made, but presumably it was secretly
made by an employee attending the meeting and, according to the article, was emailed to a list of
labor journalists.
For those of us in the labor field, the recording will come across as innocuous and tame.
Management is engaging with the employees while perhaps unsurprisingly demonstrating its
preference to be union free, but at the same time encouraging employees to talk to both sides and
to get as much information as possible. But how is the media and blogosphere portraying it?
From an employers’ standpoint, it’s not good:
At one point, a manager tells the workers, "No one in this room has more union experience than
me." At that, one worker speaks up to note that he was in a union for five years at a previous
workplace, and tells a story of how the union helped save his job after the company tried to fire
him unjustly. "Well shame on the company," replies the manager, "but we don’t do that here."
(The worker’s previous employer would no doubt say the same thing.)
Gawker.com, "Here’s Audio of Managers Scolding Employees for Wanting to Unionize"
Towards the end of the meeting, one of the managers unironically adds, "let’s just keep it
intimidation free," referring to union representatives’ efforts to talk with workers.
The Huffington Post, "Leaked Anti-Union Rant Shows What Workers Are Up Against
in America"
The managers don’t say anything particularly noteworthy in the audio clip, but their staunch antiunion position shows throughout. For every instance of a manager telling employees to “educate
yourselves on both sides of the issue” there are several other times when they tell employees how
difficult work will become with a union. One manager even resorts to saying that the employees
shouldn’t form a union “because this is the south. This is not something where unions are
[prevalent].”
Opposing Views, "This Is What Management Trying To Prevent Employees From
Unionizing Sounds Like (Audio)"
So what can employers do to protect themselves from employees making and publishing
recordings such as these? There are few decisions from the National Labor Relations Board
addressing employees’ surreptitious recording of meetings with management. However, the few
decisions provide that an employee’s recording of meetings with management is not, in itself,
unprotected conduct, and whether it is protected under the National Labor Relations Act will
depend on whether there is a nondiscriminatory work rule prohibiting such recordings.
In a recent administrative law judge decision that was ultimately adopted by the Board due to the
lack of any exceptions, Interbake Foods, LLC, Case No. 5-CA-33158 (Aug. 30, 2013), the ALJ
described the current landscape for when employee recordings are protected under the Act:
My interpretation of what the Board is saying here is that it will leave the question of any
sanction for possessing a recorder and secretly recording conversations to the policy judgments
of individual employers when they craft their work policies and rules. In other words, such
behavior, while clearly unpleasant and sneaky, is not a per se offense of the egregious character
that would lose the Act’s protection. However, the fact the conduct is notmalum in se does not
foreclose an individual employer from making that conduct malum prohibitum. The necessary
implication of the Board’s careful wording is that, if this conduct violates a valid,
nondiscriminatory work rule,that would render the behavior outside the Act’s protections.
In Interbake, the ALJ found that the employer had a nondiscriminatory rule prohibiting recording
devices, so that while the employee’s recordings of conversations with management about the
collective bargaining process were concerted activity, they were not protected by the Act.
Based on Interbake and the decisions cited therein, it appears that employers can prohibit
employees from recording meetings with management provided that it has a valid,
nondiscriminatory rule prohibiting the possession and use of recording devices inside their
facilities. Given the ALJ’s analysis in Interbake, employers’ likely need to adopt such a rule for
legitimate business reasons and, similar to the implementation of no-solicitation policies, have
the rule in place prior to the onset of union activity. However, employers should be mindful that
given the current makeup of the Board and its majority’s (and new General Counsel’s) desire to
expand employee protections under the Act, such rules and employers’ expressed need for them
will likely be heavily scrutinized and possibly invalidated. Accordingly, employers should
continue to monitor developments in this area while at the same time taking appropriate
measures to limit its exposure to similar negative PR events.
After reviewing the above information please respond to the following questions:
Compare and contrast the Facebook and Parexel situations/ outcomes.
Be sure to discuss what is meant by “protected concerted activity.”
Discuss how this term affects union and union-free workplaces.
How can HRM ensure that they are not violating employees’ protected
concerted activity rights?
Bring in at least 4 additional library sources to help strengthen your
discussion.
