Seyfarth Synopsis: A new NLRB decision that attempts to define further the boundaries of protected speech under the NLRA.
In Laborers' International Union of North America and Mantell, Case No. 03-CB-136940 (NLRB September 7, 2016) the initial question in the case was whether the Union restrained or coerced Frank Mantell in the exercise of a Section 7 right.
The initial question raises another question of whether Mantell engaged in any activity protected by Section 7. Mantell's Facebook posts concerned perceived unfairness affecting apprentices. Mantell was a journeyman, however, not an apprentice.
Mantell, who was a member of the Union Local 91, posted comments on a Facebook page that criticized the Union for allowing a Niagara Falls city councilman, running for mayor, to obtain a journeyman's book. The Facebook page was accessible to about 4,000 people, some of whom were members of Local 91.
Local 91's Business Manager, Richard Palladino, filed internal charges against Mantell. The Union's executive board conducted a trial on the charges focused on the Facebook posts. The executive board found Mantell guilty of the charges and made a decision to fine Martell $5,000 and suspend his membership for 24 months. This decision was ratified at a monthly Union membership meeting. The Union removed Mantell from the hiring hall's out-of-work list the next day. Mantell then appealed the decision to the International Union. The International subsequently informed Local 91 that it needed to dismiss the charges against Mantell.
The NLRB Administrative Law Judge (ALJ) noted that the National Labor Relations Act Section 7 provides that, "employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
The ALJ found that Mantell's Facebook posts were protected under the Act. The decision noted that "issuing a journeyman's book to someone allegedly ineligible to receive one, affected Mantell in that one more journeyman would arguably impact his opportunities for employment." As seen in NLRB v. Peter Cailler Kohler Swiss Chocolate Co., 130 F.2d 503, 505-506 (2d Cir. 1942), employees raising concerns about a common cause with fellow employees are, in fact, engaged in protected activity. "Even though the immediate quarrel may not concern them they may be assured that if their 'turn ever comes,' they will have the support of those they are then helping."
The ALJ also rejected the Union's assertion that Mantell forfeited his protection of the Act by maliciously defaming the Union and the Business Manager. The Union complained that one of Mantell's comment, in which he suggested that gifts were being given the person running for mayor, was untrue. However, the ALJ concluded that nothing Mantell said in his Facebook posts was maliciously and knowingly untrue, citing MasTec Advance Technologies, 357 NLRB 103, 107 (2011), and allowing the protection of the Act to remain intact.
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