By John V. Berry, Esq., Berry & Berry, PLLC, berrylegal.com
A new complaint issued by the National Labor Relations Board (NLRB), in Hartford, Connecticut, on October 27, 2010 has the potential to affect police officers, supervisors, their unions and police departments in general. It is one of the few labor board actions taken with respect to social networking sites in the context of labor law. It is likely to be followed by numerous others in the future. Given the unique nature of law enforcement, and through my observations in my practice involving the legal defense of law enforcement officers, I believe that it is highly likely that these issues will be raised in connection with the legal defense of law enforcement officers.
THE NLRB COMPLAINT
The NLRB complaint alleges that an ambulance service illegally terminated an employee who posted, on her personal Facebook page, some negative comments about her supervisor. The NLRB’s complaint also alleges that the company, American Medical Response of Connecticut, Inc., illegally denied union representation to the employee during an investigatory interview, and maintained and enforced an overly broad blogging and internet posting policy under the National Labor Relations Act.
The employee in question had been required by her supervisor to respond to a customer complaint about her work, in writing, and had requested a union representative, which was denied. Subsequently, when the employee left work for the day she went home and posted a negative comment on her personal Facebook page about the supervisor, which drew supportive responses from her co-workers, and of course led to additional comments or a negative variety about the supervisor. The supervisor later found out about the personal Facebook postings and terminated the employee because such postings had alleged violated the company’s internet posting policies despite the fact that she had been at home when she posted the information.
The NLRB, in conducting an investigation and filing a complaint found that the employee’s Facebook postings constituted protected concerted activity, and that “the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission.” NLRB Press Release, Nov. 2, 2010. The NLRB, in moving forward on the complaint, has alleged that the company provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.
THE APPLICATION OF THE NLRB COMPLAINT TO LAW ENFORCEMENT EMPLOYMENT
There is a hearing on the case is scheduled for January 25, 2011. While these issues will be debated before an Administrative Judge and most likely in the court system, the filing of a complaint of this type by the NLRB is unique and will start the debate about whether Facebook and other social networking sites can be considered in the context of protected speech under the NLRA and other statutes, such as the Civil Service Reform Act of 1978 (also known as the Federal Service Labor-Management Relations Statute), Pub. L. 95-454, 5 U.S.C. §7101 et seq., in addition to other state and local labor statutes that adopt many of the rulings and interpretations of the NLRB.
For law enforcement officers, this type of case, if successfully prosecuted and upheld by the courts might very well add to the already existing First Amendment protections for law enforcement and public sector employees which derive from the Supreme Court’s holding in Pickering v. Board of Education, 391 U.S. 563 (1968). The Pickering case, for many years, has stood for the proposition that public sector employees, by the very nature of their employment, do not forfeit their First Amendment rights. A copy of the NLRB press release can be downloaded here. Download NLRB Facebook