Employee's E-mail and Facebook Post Criticizing Working Conditions and Publicizing Past Union Experience Were Protected Union Activity: NLRB

Practical Law Legal Update 7-527-6085 (Approx. 7 pages)

Employee's E-mail and Facebook Post Criticizing Working Conditions and Publicizing Past Union Experience Were Protected Union Activity: NLRB

by PLC Labor & Employment

Key Litigated Issues

In New York Party Shuttle, LLC, the key litigated issues were whether:

The employee engaged in protected activity under the NLRA when he used a Facebook posting and an e-mail sent to a rival company's employees to complain about his working conditions and discuss his unionization efforts among his co-workers.
The employer violated the NLRA when it refused to return the employee to work after it lawfully laid him off during a slow business period because of the employee's:
- union-related communications; and
- expected union activities if the employer rehired him.

Background

Fred Pflantzer was a tour guide for New York Party Shuttle and operated his own tour guide company. In January 2012, as business fell off, Pflantzer was not scheduled for work. This continued until mid-February. According to Pflantzer's testimony, he started to discuss unionization with his co-workers in December 2011 or January 2012. On January 21, 2012, Pflantzer sent an e-mail to the New York Party Shuttle's tour guides and other tour guides in the area. The e-mail discussed:

Pflantzer's concerns with the terms and conditions of employment at New York Party Shuttle, including bounced paychecks.
The potential benefits of unionization.
The possibility of seeking help from the NLRB.

On February 2, 2012, Pflantzer sent another e-mail, which discussed employees' collective bargaining rights and included language on that subject from the NLRB website.

On February 11, 2012, Pflantzer sent an e-mail to employees of City Sights, his former employer and a competitor of New York Party Shuttle. This e-mail was not sent to any employees of New York Party Shuttle. The e-mail:

Stated that the terms and conditions of employment at City Sights are much better compared to New York Party Shuttle.
Explained how the working conditions at New York Party Shuttle were bad, including a lack of benefits and a union, and paychecks that bounced.
Alleged that New York Party Shuttle stopped scheduling him for work after he started to agitate for a union.
Praised the union that represents City Sights employees.

Also on February 11, Pflantzer posted a long message on a Facebook site called NYC Tour Guides, which is accessible only to New York City tour guides who have been invited to join the site. He testified that he did not know if New York Party Shuttle employees were members of the website. The Facebook post repeated most of the February 11 e-mail, but it also:

Stated that Pflantzer had recently been placed on a do not call list by his employer.
Instructed group members to:
- not seek employment at New York Party Shuttle; and
- boycott New York Party Shuttle.

Pflantzer filed an unfair labor practice (ULP) charge with the NLRB. During adjudication of the ULP, the General Counsel conceded that New York Party Shuttle's refusal to schedule Pflantzer for work during the seasonal downturn in business was not unlawful. However, the CEO of New York Party Shuttle stated that Pflantzer, who would have been eligible to be rehired by the company when the business picked up, was "no longer eligible to work for" the company because of the statements he made on February 11, 2012.

An NLRB Administrative Law Judge (ALJ) held that:

Each of Pflantzer's communications were in support of unions and therefore were union-related activity, protected by Section 7 of the NLRA. The communications were not libelous because all of the accusations were true. The communications to:
- former co-workers were to assist or support those employees' union; and
- New York Party Shuttle employees encouraged union organizing.
New York Party Shuttle violated the NLRA by:
- retaliating against Pflantzer for his union activity; and
- refusing to return Pflantzer to work because of the union activity the employer expected he would do.
New York Party Shuttle did not meet its burden under Wright Line of showing that it would have discharged Pflantzer for reasons other than his union activity.

The ALJ also held that Pflantzer was an employee, and not an independent contractor, applying the NLRB's common law agency test, which considers the following factors (none of which is decisive):

The extent of the employer's right to control the details of the work.
Whether or not the one employed is engaged in a distinct occupation or business.
The kind of occupation, including whether in the locality, the work is usually done under the direction of the employer or by a specialist without supervision.
The skill required in the particular occupation.
Whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work.
The length of time for which the person is employed.
The method of payment, whether by the time or by the job.
Whether or not the work is part of the regular business of the employer.
Whether the parties believe they are creating the relation of master and servant.
Whether the principal is or is not in business.

(NLRB v. United Ins. Co.)

The ALJ found that, on balance, the factors showed that Pflantzer was an employee. For example:

There was no written contract or other document describing the work relationship as anything other than that of employer and employee.
Pflantzer was issued a W2 statement for tax purposes and had federal, state and Social Security taxes deducted from his pay.
Pflantzer worked on a regular basis for New York Party Shuttle on tours that were set by the company's management and with work partners who were determined by management.
Pflantzer's discretion in speaking to the customers was constrained by the fact that the tour route and the things he discussed were established by New York Party Shuttle and could not be changed by Pflantzer or the driver.
The bus (the main tool of the trade) is provided by New York Party Shuttle.

New York Party Shuttle appealed the ALJ's decision by filing exceptions to the panel (Board) heading the NLRB's judicial functions.

Outcome

In a unanimous decision dated May 2, 2013, a three-member panel of the Board affirmed the ALJ's ruling, holding that:

Pflantzer engaged in union activity when he e-mailed City Sights employees and posted the Facebook message on February 11, 2012. These communications were an "obvious continuation" of his prior union organizing activity (the January 21 and February 2 e-mails) and they were not libelous.
New York Party Shuttle violated Section 8(a)(1) and (3) of the NLRA by discharging Pflantzer for his February 11, 2012 union activity, because the employer's decision to deny Pflantzer any future assignment would not have been made but for the union activity. The Board found it unnecessary to rely on the ALJ's additional finding that New York Party Shuttle believed that Pflantzer would continue his union organizing activities if he returned to work.
New York Party Shuttle could not rely on the dual motive defense under Wright Line, because there was no dispute as to activity that resulted in discipline. Furthermore, the employer could not show that it would have terminated Pflantzer in the absence of his union activities, because it admitted that he was terminated because of his February 11 communications.
Pflantzer was an employee, not an independent contractor, under the common law agency test.

The Board ordered New York Party Shuttle to reinstate Pflantzer and provide him backpay for any lost earnings suffered because of the employer's unlawful actions.

Practical Implications

In light of New York Party Shuttle, LLC, employers should be aware that the Board will likely find that:

The activities of a lone employee who publicly complains about his employer's working conditions are protected (although disparaging remarks about the product would not be protected). The Board is not likely to change its finding because the employee:
- expresses an unclear intention about union organizing; or
- addresses the union-supporting commentary to non-employees, including, for example, former colleagues at another employer or workers in the same industry, as in this case.
An employer's preventative denial of an employee's return from layoff based on the prospect of union organizing activity is unlawful under the NLRA.

Employee's E-mail and Facebook Post Criticizing Working Conditions and Publicizing Past Union Experience Were Protected Union Activity: NLRB | Practical Law