Butler Medical Transport, LLC and Rice, 05-CA-094981

• Court: National Labor Relations Board
• Parties: Butler Medical Transport, LLC v. Michael Rice and William Lewis Norvell.
• Docket Number: 05-CA-097810,05-CA-097854,05-CA-094981
• Decision Date: 27 July 2017

Butler Medical Transport, LLC and Michael Rice and William Lewis Norvell.

Nos. 05-CA-094981, 05-CA-097810, 05-CA-097854

United States of America, National Labor Relations Board

July 27, 2017

Chairman Miscimarra and Members Pearce and McFerran

DECISION AND ORDER

This case arises from the Respondent's discharge of two employees, William Norvell and Michael Rice, for posts they made on Facebook, based on the Respondent's concededly unlawful social media policy. ^[1] We affirm the judge's conclusions that the Respondent violated Section 8(a)(1) of the Act by discharging Norvell because his Facebook posts constituted protected concerted activity, and that the Respondent's discharge of Rice was lawful because his Facebook post was unprotected under the Act. ^[2] We also consider an alternative theory urged by the General Counsel that the judge failed to consider: whether the employees were discharged as a result of the Respondent's unlawfully overbroad social media policy. Applying the analytical framework established by the Board in Continental Group, Inc., 357 NLRB 409 (2011), which addresses discipline imposed pursuant to an unlawfully overbroad rule, we find that the Respondent violated Section 8(a)(1) by discharging Norvell pursuant to its unlawful social media policy because his Facebook posts were protected concerted activity, or alternatively, because they “touch[ed] the concerns animating Section 7.” Id. at 412. By contrast, we find that that the Respondent did not violate Section 8(a)(1) by discharging Rice pursuant to its unlawful social media policy. We are not persuaded by our dissenting colleague's view that the discharge of Norvell should be upheld and that Continental Group was wrongly decided (an argument the Respondent does not advance).

I. THE DISCHARGE OF WILLIAM NORVELL

The Respondent provides ambulance transportation services to hospitals, nursing homes, and other organizations. The Respondent employed Norvell as an EMT and driver from May 2005 until his discharge on October 22, 2012.

Since at least November 2011, the Respondent distributed a sheet of bullet points to newly hired employees. One of the bullet points states, “I will refrain from using social networking sights [sic] which could discredit Butler Medical Transport or damages [sic] its image.” Multiple employees were disciplined or discharged for violations of this social media policy.

On October 10, 2012, former Butler employee Chelsea Zalewski posted on Facebook about her termination. She wrote, “Well no longer a butler employee . . . Gotta love the fact a ‘professional' company is going to go off what a dementia pt [patient] says and hangs up on you when you are in the middle of asking a question.” Former and current Butler employees commented on her post. One person asked Zalewski what the patient said. Zalewski responded, “Yeah ur telling me! The pt said I told her that they never fix anything on the units . . . Yeah I [know] that pt I'm not dumb enough to tell her let alone any pt how shitty those units are they see it all on their own.”

Norvell commented on Zalewski's post. He wrote, “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court.” Norvell also suggested, “[Y]ou could contact the labor board too.”

An anonymous source left screen shots of parts of this conversation on the desk of Ellen Smith, the Respondent's director of human resources. Smith brought the conversation to the attention of William Rosenberg, Respondent's chief operating officer. Smith and Rosenberg determined that Norvell's suggestion to Zalewski that she get an attorney and sue the Respondent was a violation of the Company's social media policy. They decided to terminate him.

On October 22, 2012, Smith and Rosenberg called Norvell. They explained that he was being terminated because his postings violated the social media policy. Norvell was given no other reason for his termination.

A.

We affirm the judge's conclusion that the Respondent violated Section 8(a)(1) by discharging Norvell because his Facebook posts were protected by Section 7 of the Act.

First, we agree with the judge's finding that Norvell's Facebook posts constituted concerted activity. Norvell engaged in a conversation with fellow employees regarding Zalewski's recent discharge, and Norvell advised Zalewski about potential avenues of redress. In Fresh & Easy Neighborhood Market, 361 NLRB No. 12, slip op. at 3 (2014), drawing on well-established precedent, the Board held that an employee's solicitation of her coworkers in connection with her personal complaint of sexual harassment was concerted activity because she sought to enlist the help of other employees. Id. at 3-4. Indeed, “the Board has long held that employee discussions in which advice about future action is sought or offered constitute concerted activity.” UniQue Personnel Consultants, 364 NLRB No. 112, slip op. at 3 (2016) (citing Jhirmack Enterprises, 283 NLRB 609, 614-615 (1987), and Cadbury Beverages, 324 NLRB 1213, 1220 (and cited cases) (1997), enfd. 160 F.3d 24 (D.C. Cir. 1998)). ^[3] In UniQue, supra, the Board found that an employee engaged in concerted activity by seeking a coworker's advice about how to deal with perceived unfair discipline. The Board also found that an employee engaged in concerted activity in Jhimark, supra, by responding to a coworker's inquiry about complaints concerning his job performance and advising him to take corrective action. And in Cadbury, supra, the Board found that an employee's advice to a coworker not to contact a specific union official for support in obtaining an unpaid bonus constituted concerted activity. Similar to the employees in the above-cited cases, Norvell engaged in concerted activity when he offered advice to his former coworker regarding future action.

Our dissenting colleague asserts that Norvell's Face-book posts constituted merely individual activity, citing Mushroom Transportation Corp. v. NLRB, 330 F.2d 683 (3d Cir. 1964). We disagree. In Mushroom, the court found that an employee did not engage in concerted activity when he advised coworkers regarding their rights because no future group action was contemplated. Similarly, in Daly Park Nursing Home, 287 NLRB 710, 710 (1987), the Board found that a conversation following the discharge of an employee in which other employees discussed her discharge, with one coworker remarking “that the discharge was ‘unfair' and that it was a shame [the employee] could not hire a lawyer to fight it” did not constitute concerted activity. The Board explained that as in Mushroom, there was “no evidence that [the coworker] or any of the employees with whom she discussed [the] discharge contemplated doing anything about the discharge.” Id. at 711. Further, there was not “even the suggestion that the employees might attempt to give mutual aid or protection to [the discharged employee] by encouraging her to institute legal action to challenge her termination.” Id. This case presents a clear contrast. Here, the Facebook conversation involved both Zalewski, the discharged employee, and Norvell, who encouraged her to seek legal help and to contact the Board. Thus, Norvell's Facebook posts were clearly concerted activity.

Second, we affirm the judge's finding that Norvell's Facebook posts were made for the purpose of mutual aid and protection. ^[4] Norvell posted his comments as part of an online conversation with fellow employees, triggered by one employee's complaint about what she believed was her unjust discharge-a potential concern for all employees, who have a common interest in job security and protection against such a dismissal. As we observed in Fresh & Easy, the “Board has found that an employee who asks for help from coworkers in addressing an issue with management does, indeed, act for the purpose of mutual aid or protection, even where the issue appears to concern only the soliciting employee, the soliciting employee would receive the most immediate benefit from a favorable resolution of the issue, and the soliciting employee does not make explicit the employees' mutuality of interests.” 361 NLRB No. 12, slip op. at 5. By complaining, Zalewski was at least implicitly soliciting support from her coworkers, and by advising Zalewski of potential avenues of redress for her discharge, Norvell was making common cause with her and with other employees privy to the conversation. Application of the solidarity principle discussed in Fresh & Easy, is especially fitting here because Norvell was fired for helping the fired Zalewski-creating precisely the occasion for reciprocal help that the solidarity principle contemplates-“because next time it could be one of them that is the victim.” Id. at 6. Thus, we reject the Respondent's contention that Norvell's conduct was not for the purpose of “mutual aid or protection.” ^[5]

Because we agree with the judge's findings that Norvell's Facebook posts constituted protected concerted activity, the Respondent knew of the concerted nature of the posts, and Norvell's discharge was motivated by the posts, we affirm the judge's conclusion that the Respondent violated Section 8(a)(1). ^[6]

B.

The General Counsel alternatively contends that Norvell's discharge violated Section 8(a)(1) because it was pursuant to an unlawfully overbroad rule. In Continental Group, supra, the Board held that discipline imposed pursuant to an unlawfully overbroad rule may violate Section 8(a)(1) in two situations: if the employee was disciplined for engaging either in protected concerted activity or, for conduct that is not concerted, but “touches the concerns animating Section 7.” 357 NLRB at 412. The employer can avoid liability by demonstrating that the employee's conduct actually interfered with the employer's operations and that the interference, rather than the violation of the overbroad rule, was the reason for the...