American Medical Response employee Dawnmarie Souza was unhappy that her supervisor would not let a representative of her union help her prepare a required response to a customer's complaint about her work.  She then posted insults and complaints about her supervisor on her Facebook page.  She compared the supervisor to a psychiatric patient and made other insulting comments.  But those comments "drew supportive responses from her co-workers."

The General Counsel may start the NLRB complaint process, but the complaint does not represent the position of the National Labor Relations Board, which has yet to decide this case.  This fact was misreported in the New York Times.  After the complaint is filed, the case goes to trial before an administrative law judge and then, if appealed, to the Board and then the federal courts.

The complaint said the company's policy violated the NLRA because it was overbroad by prohibiting employees from making disparaging or discriminatory comments when discussing the company, superiors and co-workers, a right protected by the NLRA.

Jonathan Kreisberg, director of the NLRB's Hartford, Connecticut office said,

You’re allowed to talk about your supervisor with your co-workers. You’re allowed to communicate the concerns and criticisms you have. The only difference in this case is she did it on Facebook and did it on her own time and her own computer.

The administrative hearing will begin January 25, 2011 in Connecticut.

Labor Law Affects Non-Union Employers

The National Labor Relations Act (NLRA) not only gives workers the right to form unions, it prohibits employers from punishing workers for discussing working conditions or unionization.  This right extends to all employees regardless of whether they belong to a union, or their workplace is "unionized."

To receive protection, the employee's discussion must be "concerted activity," which means it generally involves two or more workers.  If the employee is merely criticizing the company, the NLRA may not offer protection.  The activity must be an attempt to improve working conditions, such as wages and benefits.  Some examples of such activities include:

1. two or more employees addressing their employer about improving their working conditions and pay;
2. one employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions;
3. two or more employees discussing pay or other work-related issues with each other.

The NLRA also protects any individual employee’s right to engage in union support, membership, and activities as well as an individual employee’s right not to engage in union activities or in other protected, concerted activities.

Courts have held that that employees have the right to talk about working conditions even where no union had a collective bargaining agreement and even where the employees have no intention of forming a union.  NLRB v. Phoenix Mutual Life Insurance Co., 167 F2d 983 (7th Cir. 1948), cert. denied 335 U.S. 845 (1948).