Thursday, February 23, 2017

What’s good for the goose … NLRB protects employee’s Facebook post critical of his union

It won’t take much searching through the archives to find posts discussing the NLRB’s protections for employees’ Facebook posts critical of their employers (here, for example). Protected speech under the NLRA, however, cuts both ways. Section 7 not only protects anti-employer comments, but also anti-union comments. Thus, it would make sense that the NLRB would conclude, as it recently did in International Union of North America, Local Union No. 91 [pdf], that section 7 protects an employee who posts on Facebook comments critical of his labor union.

The Facebook posts in question—which resulted in Frank Mantell’s removal from the union’s hiring hall list, the levy of a $500 fine, and the suspension of his union membership for 24 months—included the following:
  • “It’s not that we are corrupt. It’s just the leader of our union and our small 3 man PAC committee will back any politician who will promise benefits to us even though they are not the best choice for our city or county.”
  • “I am not running for mayor and receiving gifts from our union. I am just a voice in a rather dictatorship of a union. And I am exposing him for who and what he is. Our union deserves better.”
  • “More of a reason not to give a journeyman union book to a politician when we have an apprenticeship program in place. This kind of bad decision making does not help us in the eyes of the International.”
The Board concluded that Mantell’s post were protected, and that they did not cross the line to lose their protection by defaming the union and its business manager.
It is “elementary” that an employee’s right to engage in intraunion activities in opposition to the incumbent leadership of his union is concerted activity protected by Section 7. Accordingly, we … find[ ] that Mantell engaged in protected, concerted activity by posting his criticisms of the Respondent and its business manager on Facebook. … 
The Respondent contends that Mantell’s Facebook posts damaged both its reputation in general as well as the reputation of Palladino as business manager. … We find that Mantell’s Section 7 right to press the union to change its policies, especially those policies affecting members’ employment opportunities, outweighs the Respondent’s vague claim that its reputation was damaged.
As this case makes clear, section 7 not only protects an employee’s criticisms of his or her employer, but also those of his or her labor union—a fair and balanced result.