Wyatt Employment Law Report

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NLRB Administrative Law Judge Finds Discharges Over Facebook Postings Illegal

By Edwin S. Hopson

In the first ruling regarding discipline of employees for Facebook postings, a National Labor Relations Board Administrative Law Judge in Hispanics United of  Buffalo, Inc., JD 55-11 issued September 2, 2011, found this non-profit organization unlawfully discharged five of its employees after they posted comments on Facebook concerning working conditions, including work load and staffing issues. After hearing a co-worker criticize other employees for allegedly not doing enough to assist the non-profit organization’s clients, the employee posted those same allegations on her Facebook page from her personal computer. That initial post prompted responses from other employees who defended their job performance and criticized working conditions at the non-profit organization. The employer brought the five employees in and discharged them.  It claimed that the discharges were due to the nature and tone of the postings which it characterized as bullying and harassment. 

The Administrative Law Judge, however, held that the remarks posted by the five employees was protected under Section 7 of the National Labor Relations Act (“Act”) and that, therefore, the discharges were violations of Section 8(a)(1) of the Act.  He ordered the five employees to be reinstated with backpay

The non-profit organization has a right of appeal to the Board in Washington,D.C.

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Is that an Escaped Prisoner or the Telephone Repairman at My Door?

By Tyson Gorman

In The Southern New England Telephone Company d/b/a AT&T Connecticut (AT&T East), 356 NLRB No. 118 (2011) issued March 24, 2011, a divided three member panel of the National Labor Relations Board adopted the decision of the Administrative Law Judge finding that AT&T service technicians who were wearing “prisoner” and other protest t-shirts while working to highlight labor issues with the company were engaged in protected activity within the meaning of Section 8(a)(1).

 AT&T had suspended 183 employees for wearing the “prisoner” and two other (“Havoc” and “Scab”) shirts while working. The subject prisoner shirts were plain white and listed only “Inmate #____” on the front and had “Prisoner of AT$T” with vertical stripes on the back.  The company was ordered to post a notice advising employees of their rights to wear the shirts, rescind all suspensions, and pay backpay.

Member Brian E. Hayes observed in dissent, “[i]t is well established that, although employees have a protected right under Section 7 of the Act to wear union insignia while working, an employer may limit this activity if it establishes ‘special circumstances’ that justify the limitation imposed” (citing Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945)).  Member Hayes felt the special circumstances exception applied in this case. 

However, the majority, consisting of Chairman Wilma B. Liebman and Member Craig Becker, found that AT& T failed to demonstrate sufficient “special circumstances” to justify prohibition of wearing the shirt and thereby violated Section 8(a)(1) of the Act. The majority determined the shirt “was not reasonably likely, under the circumstances, to cause fear and alarm among [AT&T] customers.” It noted the shirt looked very little like actual prison garb and that the subject technicians normally arrived at customers’ homes, in AT&T branded trucks, only after an appointment had been made and a confirming phone call received.  The majority distinguished this situation from Pathmark Stores, 342 NLRB 378 (2004), where special circumstances were found allowing a grocer to restrict employees from wearing “Don’t Cheat About the Meat” T-shirts while working.

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NLRB Expands Right to Handbill to Private Property in Certain Circumstances

By Edwin S. Hopson

In 1997, off-duty employees of Ark Las Vegas Restaurants (“Ark”), a food concessionaire at New York New York Hotel & Casino (“NYNY”) in Las Vegas, Nevada, engaged in handbilling in the porte-cochere area of the casino and distributed their handbills to customers of NYNY’s hotel, casino, and restaurants as those customers entered NYNY’s facility. The purpose of the handbilling was in furtherance of and to publicize their organizing campaign at Ark whose employees were unrepresented.  In 1998, the handbilling was repeated in the same areas by off-duty Ark employees.  On both occasions, NYNY called the police who issued trespass citations and escorted the Ark off-duty employees off NYNY’s premises. 

Unfair labor practice charges were filed alleging violations of Section 8(a)(1) by NYNY.  After complaints were issued, administrative law judges found that NYNY had violated the Act, and the National Labor Relations Board affirmed issuing its decisions in 2001. See New York New York Hotel & Casino, 334 NLRB 762 (2001); New York New York Hotel & Casino, 334 NLRB 772 (2001).  The cases were consolidated for review by the U.S. Court of Appeals for the District of Columbia Circuit.  The Court of Appeals remanded the cases and instructed the Board to consider the distinction between rules of law applicable to employees and those applicable to nonemployees, see Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), and to answer specific questions pertaining to application of those distinctions to the facts presented in the NYNY cases.  New York New York, LLC v. NLRB, 313 F.3d 585, 590 (D.C. Cir. 2002).  Subsequently, the Board in 2003 accepted the remand and in 2007 issued a notice of oral argument and conducted an oral argument in the cases. Numerous amici briefs were filed in the consolidated cases.

On March 25, 2011, the Board, in a 3 to 1 decision, in New York New York Hotel & Casino, 356 NLRB No. 119 (2011), reaffirmed its holdings from 2001, and found NYNY violated Section 8(a)(1) of the Act by its actions in 1997 and 1998 towards the Ark off-duty employees who were handbilling on its property. Continue reading