November 27, 2021

Volume XI, Number 331

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November 24, 2021

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NLRB Failed to Support Conclusion that Employee’s Disparaging Comments Were Protected, Not Disloyal

The U.S. Court of Appeals for the District of Columbia Circuit has refused to enforce the NLRB’s order finding that an employee’s discharge violated the National Labor Relations Act because the Board did not satisfy the Supreme Court’s two-prong Jefferson Standard test for determining whether an employee’s disparaging statements to third parties about his employer are protected. Oncor Electric Delivery Co. v. NLRB, No. 16-1278 (D.C. Cir. Apr. 13, 2018). The Court remanded the case to the NLRB for a re-examination and a thorough explanation of its decision.

The Supreme Court in Jefferson Standard, 346 U.S. 464 (1953), which later was followed by the NLRB and other court cases, ruled that employee public attacks on the quality of the employer’s products, services, or operations are protected by the NLRA when they are made in furtherance of a union’s position in a labor dispute. The public comments must (1) indicate that they are being made as part of a labor dispute and (2) not be extremely disloyal, reckless, or maliciously untrue.

In this case, the employee, who also served on his union’s negotiating committee, repaired and serviced “smart meters” at residential and commercial sites of utility users. The union and the employer had a history of disagreement over the increased use of the smart meters, primarily because this would reduce the need for employees to read meters, and therefore eliminate some union-represented jobs.

The union and the employer were deadlocked in collective bargaining negotiations, particularly over the length of a new agreement. The employee gave the employer an ultimatum: agree to the union’s demands, or he would voluntarily appear before a state senate committee hearing on whether smart meters had harmful effects on public health. The employer did not agree.

In his brief testimony before the committee, the employee identified himself as a union member and said he was personally handling an increasing number of work orders where the smart meters had burned up and burned the meter bases as well. He concluded that “these things are causing damage to people’s homes.” The employee did not reveal the ongoing contract dispute.

The employer reviewed the employee’s service call records, concluded that his testimony was false, and fired him. The NLRB administrative law judge and the Board ruled that the employee’s statements were protected and that his discharge violated the NLRA.

The Court explained that the first Jefferson Standard requirement is important so the audience can take this into account when assessing the employee’s credibility. The NLRB did not explain how this requirement was satisfied and the Court doubted whether the requirement could be satisfied under the record in the case. The Court also ruled the NLRB had to clearly take a position on which party has the burden of proof on the two requirements for NLRA protection — the General Counsel or the employer.

Public attacks on the quality of an employer’s products and services as leverage in labor disputes is a regular union tactic. Employers faced with this situation should carefully determine whether the employee referred to the labor dispute when uttering the disparaging remarks, as well as whether the remarks were disloyal, or recklessly or maliciously untrue. The NLRB historically has given employees the benefit of the doubt in such cases.

Jackson Lewis P.C. © 2021National Law Review, Volume VIII, Number 118
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About this Author

James A. Mills, Labor Attorney, Cincinnati Ohio, Jackson Lewis Law Firm
Principal

James A. Mills is a Principal in the Cincinnati, Ohio, office of Jackson Lewis P.C.

Mr. Mills advises clients in a wide range of industries in all aspects of traditional labor law, including union avoidance, collective bargaining and arbitration. He represents employers in proceedings with the NLRB, including representation cases and unfair labor practice cases.

Mr. Mills also advises and represents employers in a broad range of employment law matters, including those involving...

513-621-3440
Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

617-367-0025
Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

212-545-4000
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