Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Five DC firefighters are in hot water over some controversial comments they posted on Facebook.
The controversy began when a firefighter posted a photo of a DC police officer who had just issued the firefighter a traffic ticket. Along with the photo the firefighter included a comment to the effect "This is why we should be careful and take our time getting to incident scenes."
The comment was understood to refer to a March, 2013 incident where an injured DC motorcycle police officer had to wait 20 minutes for an ambulance. Following the initial post, four other firefighters added their thoughts.
Due to the inflammatory nature of the posts, Fire Chief Kenneth Ellerbe transferred the five members to desk jobs while the matter is investigated.
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This will be an interesting case to follow as both the First Amendment and the right of unionized employees to engage in “concerted activities” in social media, are implicated. We will have to await more detail to be able to fully analyze both aspects.
The following is taken from the NLRB’s August 18, 2011 memo on social media, outlining the approach it applies when looking at whether employee speech in social media is protected under either of two tests it applies in such cases: Atlantic Steel and Jefferson Standard. The case involved a car salesman who posted photos and comments about his dealership that his employer took offense to.
Although the employee posted the photographs on Facebook and wrote the comments himself, we concluded that this type of activity was clearly concerted. We found that he was vocalizing the sentiments of his coworkers and continuing the course of concerted activity that began when [coworkers] raised their concerns at the staff meeting. Further, we concluded that this concerted activity clearly was related to the employees’ terms and conditions of employment. …
Atlantic Steel is generally applied to an employee who has made public outbursts against a supervisor, while Jefferson Standard is usually applied where an employee has made allegedly disparaging comments about an employer or its product in the context of appeals to outside or third parties.
Applying Atlantic Steel, we found that the employee’s Facebook postings … were not so opprobrious as to lose the Act’s protection. The activity concerned a subject matter protected under Section 7. Further, although the activity was not provoked by any unfair labor practice committed by the Employer, the nature of the outburst was much less offensive than other behavior found protected by the Board. …
Under Jefferson Standard, the inquiry is whether the communication is related to an ongoing labor dispute and whether it is not so disloyal, reckless, or maliciously untrue as to lose the Act’s protection. Here, the employee’s postings were neither disparaging of the Employer’s product nor disloyal. The postings merely expressed frustration with the Employer’s choice of food at the sales event. They did not refer to the quality of the cars or the performance of the dealership and did not criticize the Employer’s management. We found it irrelevant that the postings did not clearly indicate that they were related to a labor dispute given that they were neither disparaging nor disloyal.
UPDATE: May 15, 2013
