Employers -- both union and non-union -- should watch for the outcome of an unfair labor practice complaint recently issued by the Acting Regional Director of the Hartford regional office of the National Labor Relations Board (the "Board") in American Medical Response of Connecticut, Inc., Case No. 34-CA-12576. For the first time, the Board has sought to apply the protections of the National Labor Relations Act (the "Act") to an employee's work-related comments on a personal "social media" webpage (in this case, Facebook). Equally important is that the complaint continues a trend in recent Board decisions holding that employees do not lose the protections of the Act notwithstanding their premeditated use of profane or obscene language toward a supervisor. Finally, the pending case is a useful reminder for employers about the potential risks of a policy too broadly prohibiting employee disparagement of the employer or its supervisors.

In this case, the employer ambulance service, American Medical Response ("AMR"), asked an employee, Dawnmarie Souza, to write a report in response to a customer complaint about her work. Souza requested and was denied representation from her union, Teamsters Local 443, to assist her in preparing the report. According to the Board, Souza's supervisor threatened her with discipline because of her request for union representation. Later that day, Souza vented her anger in a number of comments posted on her personal Facebook page. Souza first referred to her supervisor as a "17," which according to news reports is AMR code for a psychiatric patient. After a number of other persons, not all of whom appear to have been AMR employees, posted comments and questions on her Facebook page over a number of hours, Souza posted additional personal attacks against her supervisor, calling him a four-letter obscenity and a "scumbag." The Board alleges that AMR fired Souza a few weeks later for violating its "Blogging and Internet Posting Policy," which stated in part that "Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors." AMR denies that Souza was fired for her Facebook postings; it maintains that she was discharged due to "multiple, serious complaints about her behavior."

The questions raised by the Board's complaint are whether Souza's Facebook postings were protected "concerted activities" under the Act, making her discharge on that basis illegal under Section 8(a)(1), which prohibits both union and non-union employers from interfering with, restraining, or coercing employees with respect to such activities; whether AMR's blogging/Internet posting policy was overbroad and therefore coercive under Section 8(a)(1); and whether AMR improperly denied her assistance by her union. For employers with non-unionized workforces, it is important to keep in mind that the Act's protections for engaging in "concerted activities" -- usually involving employees acting together in an effort to improve working conditions, such as wages and benefits -- apply with equal force in non-union settings.

Although most employers would view Souza's comments about her supervisor to be flagrantly disparaging and inappropriate, the Board has developed a four-part test to determine whether an employee's activities lose their protected status due to insubordinate statements. Specifically, under Atlantic Steel, 245 NLRB 814 (1979), the Board considers: (1) the place of the discussion, (2) the discussion's subject matter, (3) the nature of the employee's outburst, and (4) whether the outburst was provoked by the employer's unfair labor practices. The standard provides some leeway for impulsive outbursts in the context of labor relations and balances that consideration against the employer's need to preserve appropriate order through respect for supervisors.

Souza's denigrating comments, broadcast in a highly public electronic forum, were arguably not spontaneous or directly related to terms or conditions of employment common to others in the workplace. Yet the Board's Acting General Counsel, Lafe Solomon, has told the media that he equates Souza's Facebook postings with a conversation about working conditions among co-workers "at the water cooler." The attitude reflected by Mr. Solomon's comment is consistent with the Board's recent history of viewing almost any work-related criticism as being protected, no matter how crudely or profanely expressed and no matter the forum.

For example, in Kiewit Power Constructors Co., 355 NLRB 150 (Aug. 27, 2010), the Board rejected the recommendation of its own administrative law judge and held that the Act protected an employee who complained about being warned for taking excessive breaks, even though he told his supervisor in front of co-workers that if he were terminated it would "get ugly" and that the supervisor "better bring his boxing gloves." Similarly, in Plaza Auto Center, Inc., 355 NLRB 85 (Aug. 16, 2010), again despite a contrary recommendation from the administrative law judge who acted as a fact finder, the Board held that a non-union car salesman was protected from discharge after he bluntly told the owner of the dealership what he thought of him in a highly offensive and profane manner because he disputed a commission payment.

The Board's employee-friendly interpretation of the Atlantic Steel criteria as reflected in these recent decisions will inevitably be the subject of judicial scrutiny. (Kiewit Power Constructors has already appealed the Board's decision.) If an appellate court accepts the Board's holdings as a valid interpretation of the Act, it appears that there is little short of explicit, direct and premeditated threats of physical harm that would strip employee conduct of its protected status.

A preliminary ruling on the Board's complaint against AMR will not be made until sometime in 2011, and that outcome will then be subject to an appeal. For now, in view of the Board's current composition and the recent Board decisions mentioned above, employers in both union and non-union workplaces should review their social media, blogging and electronic communications policies to assess whether any restrictions upon non-supervisory employee statements might be deemed overbroad and violative of section 8(a)(1). Before discharging an employee based upon social media content, even when that content or tone is harsh and critical of the company or its supervisors, employers should determine whether any statements could be construed as protected activity, i.e., concerning the terms and conditions of employment.