1. Social Media Under the RLA
Cliff Godiner
Thompson Coburn LLP
One US Bank Plaza
St. Louis, MO 63101
Copyright © 2012 Thompson Coburn LLP

2. NLRB Rules Under NLRA
Employees cannot be disciplined for engaging in protected, concerted activity, i.e., “conduct with or on the authority of other employees, and not solely by and on behalf of the employee himself.”
Insulting supervisors or managers loses protection if “opprobrious.” Atlantic Steel.
Disparaging comments about employers lose protection if unrelated to a labor issue/dispute or “disloyal, reckless, or maliciously untrue.” Jefferson Standard.

3. Legal or Illegal?
Luxury car dealer hosted event to introduce new car model. Employees discussed unhappiness with the event. One employee posted the following on Facebook:
“I was happy to see that [employer] went “All Out” for the most important launch of a new BMW in years A car that will generate tens of millions of dollars of revenues for [employer] over the next few years. The small 8 oz. bags of chips, and that $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were such a nice touch But to top it all off The Hot Dog Cart. Where our clients could attain an over-cooked wiener and stale bun.”
ILLEGAL – fact that several employees were unhappy with event made conduct concerted. No opprobrious conduct and no disparagement of employer’s products or customers.

4. Legal or Illegal?
Employees learned that employer had under-withheld state income tax from paychecks. Facebook posts by employees were joined in by customers. One employee posted that a company owner was “such an asshole.” She was fired.
ILLEGAL. Conversation involved a subject of mutual concern among employees, and were not opprobrious. Note: “scumbag” is also not opprobrious.

5. Legal or Illegal?
Employee was reprimanded by supervisor. Posted on Facebook “F– [Employer].” 4 people, including a co-worker,” “liked” that post. Employee responded by stating that employer did not treat its employees well. No co-workers responded to that post. Employee was terminated.
LEGAL. No protected concerted activity; issue was an individual one involving a single reprimand.

6. Legal or Illegal?
New bartender, close friend of the GM, was charging customers for premium liquor but giving them standard liquor. Another bartender posted on Facebook that the new bartender was “screwing over” the customers. She also posted that dishonest employees along with a management that looks the other way will be the death of a business. Two co-workers agreed.
LEGAL. Protests over the quality of an employer’s services are not protected if they have only a tangential relationship to terms and conditions of employment.

7. The RLA
Contains no protection for all “protected, concerted activity.”
Contains protections for employees engaged in unionization.
Section 2, Third prohibits carrier “interference, influence, or coercion” in whether employees unionize or their choice of a union.
Section 2, Fourth prohibits carrier efforts to “influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization.”

8. Practical Effect of Differences in the Statute
Where employees are involved in unionization, NLRA and RLA are similar
But where union is already selected or the conduct is unrelated to unionization, RLA doesn’t have a prohibition on discipline
Courts say that, outside of the context of unionization, Section 2, Third and Fourth, don’t apply unless carrier’s goal is to destroy the union or the collective bargaining process

9. Application of These Principles
Konop makes some sense – case involves interference with right to choose rival union trying to unseat incumbent.
While wholesale application of NLRA union organizing rules was not appropriate, carrier did take action because employee wrote that union should be unseated.

10. Held v. American Airlines
Union official complained to airline about union member’s public criticism of the official
In response, Held posted on a password protected part of the union website that:
“I’m not sure why a homosexual fagg-t retard would gain such notice. Quite frankly, I am turned off by dyke, low life assholes, such as he is.” Went on to call union official a “little girl,” and said that someone should “give him a pacifier and a new skirt so that we can move on to true union issues.”
Comments were passed on to American, which charged Held with “hate-related behavior” under a policy that prohibited actions or statements that suggest hatred for or hostility toward a person due to, among other things, sexual orientation.

11. Held v. American Airlines
Court rules that Section 2, Third and Fourth don’t apply. There’s already a union and no effort to unseat that union.
Matter had to be conclusively resolved in arbitration
That’s the RLA: we trust arbitration

12. RLA Arbitration and Social Media
Forget the NLRA rules that protected, concerted activity on social media cannot form the basis for discipline. Not true under RLA.
Issue is just cause.
Held was found to have engaged in hate-related behavior. As Arbitrator Bloch said, “hateful epithets do not become less offensive or more tolerable by their having arisen in the courts of intra-Union saber rattling.”
Fact that all union members with a password could view comment made it public enough to warrant termination.

13. Questions?