Calling Employer “Stupid” Protected Under NLRA

By Lehr Middlebrooks Vreeland & Thompson, P.C.

December 19, 2019

The case of Roseburg v. Forest Products Company and Carpenters Industrial Council Local Union No. 2949 (NLRB Nov. 29, 2019), involved the scope of an employee’s protected activity when criticizing the company on the union’s Facebook page. Employee Miller was a saw operator at the company’s mill from November 3, 2003,until his termination on September 8, 2017. Miller was a member of the local union and participated in the union’s Facebook page. Only those who were permitted to have access to the page could participate. Days prior to Miller’s termination, forest fires occurred which caused smoke at the company’s plant. The plant is not a sealed facility so it was difficult for the company to continue production and maintain air quality. The company closed windows and doors in order to try to limit the smoke, but to no avail. Miller posted on the union’s Facebook page: “Apparently closing all of the doors and windows will help keep the smoke out of the plant. Even though the plant isn’t sealed and there isn’t a filtration system. This is the level of stupidity that our management team has elevated to.” Eighteen other employees responded with “likes” or a smiling face emoji. Another employee replied, “Close all the windows and doors, but forget about all the holes and cracks in the walls.” Miller responded: “My point exactly.” Miller added “There is no way to keep the smoke out because it’s already in there. There are huge fans sucking in air from outside and closing the doors won’t help. It will only turn it into a sweat shop.” Another employee took a screenshot of Miller’s post and brought it to the company’s attention, resulting in Miller’s termination.

The company terminated Miller for violation of its Company Loyalty Policy. The ALJ concluded that the termination violated Miller’s Section 7 rights and he should be reinstated with back pay, which the NLRB upheld.