Most people might think that by now the National Labor Relations Board has a readyanswer for every case it faces. After all, the board has been around for over three-quarters of a century and has heard literally thousands of cases.
Nevertheless, once in a while an unusual action by an employee or an innovative policy by an employer breaks new ground. Such a situation emerged recently when an employee's use of Facebook violated her employer's social media policy. The question that emerged from the case focused on a section of the National Labor Relations Act (NLRA) that shields employees who are engaged in "concerted activities for the purpose of . . . mutual aid and protection." The exact meaning of the term "concerted activities" and the phrase "mutual aid and protection" was a bit uncertain until the case mentioned above brought DawnmarieSousa, an EMT employed by American Medical Response (AMR), to the National Labor Relations Board. Apparently, Sousa was fired for making disparaging remarks about her supervisor on Facebook .
These remarks inspired several online responses from Sousa's co-workers. Evidently, Sousa had been the target of a customer complaint. Standard operating procedure at AMR required Sousa to write a response to that complaint. Sousa asked her supervisor to allow her to get help from a Teamsters' representative in writing her response. Simply stated, her supervisor said no. It was at this point, or shortly hereafter, that Sousa accessed Facebook and complained about her boss.
At one point she wrote that she loved "how the company allows a 17 to become a supervisor." (It was later revealed that, at AMR, the number "17" refers to psychiatric patients.) When AMR learned about the Facebook discussion, Sousa was discharged because she had disobeyed an AMR rule that forbids workers from making unflattering remarks about AMR online. Sousa went to the National Labor Relations Board and the agency filed a complaint on her behalf. The NLRB ruled against AMR stating that Sousa's remarks were protected by the NLRA precisely because she had discussed working conditions with co-workers.
According to the NLRB, this activity is protected by the NLRA as "concerted activities for the purpose of . . . mutual aid and protection." The NLRB also chastised AMR for developing a social media policy that was openended and which, as a result, violated NLRA rules. Apparently, Sousa's termination was a secondary concern to the NLRB. The primary problems were AMR's social policy media policy. As you read this chapter pay close attention. By the time you're done, you should know how to construct a properly written social media policy.
[See In re American Medical Response of Connecticut, as discussed in Steven Greenhouse, "Company Accused of Firing Over FacebookPosting," The New York Times (August 11, 2010; and Adrienne l. Rapp, "The Responsible Employer's Social Media Policy," Labor and Employment Update ," Ohio State Bar Association Annual Conference (Columbus, Ohio, May 6, 2011).]
Opening Case Questions
1. As a member of the Teamsters, would the EMT in this case be an at-will employee? Why or why not?
2. What type of agreement would protect the EMT as a union member? Explain.
3. What would have happened had no other AMR employees responded to the EMT's Facebook posting? Explain.
4. Is it possible to have a "concerted effort" and "mutual aid and protection" if no one responds to the Facebook posting? Explain .
5. How should AMR rewrite its social media policy? Explain.