Employees’ Distribution of Maliciously False Letter Found Unprotected by the NLRA
Section 7 of the National Labor Relations Act (the “NLRA”) guarantees the right of employees to engage in “concerted activities for the purpose of bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Additionally, Section 8(a)(1) of the NLRA prohibits employers from interfering, restraining, or coercing employees in the exercise of these rights. Employee appeals concerning working conditions, even when made to the employer’s customers, the public, or other parties outside the employer-employee relationship, usually constitute activity protected under the NLRA. However, a recent decision of the National Labor Relations Board (the “NLRB”) illustrates that the right to engage in such communications is not without limits. In TNT Logistics N. Am. Inc., 347 N.L.R.B. No. 55 (2006), the NLRB ruled that certain employees were lawfully discharged for sending to the employer’s major client a letter accusing management of forcing employees to falsify records; the letter was found to be unprotected by the NLRA because it included maliciously false statements.
Employees Emerson Young, John Joliff, and Steven Daniels worked as truck drivers at the East Liberty, Ohio facility for TNT Logistics, which engages in interstate transportation of freight. In May 2002, a few employees approached Young with complaints about working conditions at the facility and expressed interest in organizing a union. The employees also suggested sending a letter of complaint to management. Young agreed to draft the letter and enlisted Joliff and Daniels to assist. Young subsequently sent such a letter to TNT management and to Honda of America, TNT’s largest client. The letter also threatened that copies of the letter and information about the complained-of working conditions would be sent to Ohio television stations if the employer failed to remedy the situation. Although the letter was not signed by the individual employees, it indicated it was written and sent by the dock workers and drivers at the East Liberty facility. The letter protested the behavior of management at the facility, including alleged mistreatment and discrimination by two managers, but, more importantly, the letter asserted that managers had forced employees to falsify logbook entries, impacting employee performance bonuses. However, notwithstanding this assertion, Joliff had previously testified to the contrary in a prior legal proceeding, where he had stated that employees merely felt as though they had to “fix” the logbooks to protect their bonuses, and not that they had been coerced to do so by management. After receiving the letter, Honda contacted TNT and asked for assurances that there would be no “disruption” at the facility. Accordingly, TNT discharged Young, Joliff, and Daniels for their participation in the distribution of the letter, and the discharged employees filed unfair labor practice charges with the NLRB.
The NLRB majority found that the employees clearly were engaged in concerted activity under Section 7 of the NLRA but that the letter lost its protected status because it was “maliciously false.” There was sufficient evidence to support the conclusion that the employees made the statement regarding forced falsification of the logbooks with knowledge of its falsity or at least with reckless disregard to its truth. The employees’ letter affirmatively represented that management “asked” employees to “fix” logbooks, but Joliff had expressly contradicted that assertion in earlier sworn testimony. In sum, the false accusation, in this particular context, was more than mere exaggeration, but was patently maliciously false.
Board Member Schaumber, in a separate concurring opinion, found the letter unprotected for an additional reason — because it publicly disparaged the employer’s business reputation. Relying on an earlier Board decision in Firehouse Restaurant, 220 N.L.R.B. 818, 825 (1975), he concluded that the maliciously false statements crossed the line from protected expression of employment-related concerns into the realm of “maliciously disparaging [an] employer’s product or undermining his reputation.”
On the other hand, in a dissenting opinion Board Member Walsh disagreed with the majority’s ruling and concluded that the employees’ statement could not properly be considered maliciously false. Because only those statements made with knowledge or reckless disregard for falsity are unprotected, statements that expressed justified beliefs and feelings, even if incorrect, are protected. According to Member Walsh, the letter’s statement was merely an exaggeration, not deliberately or recklessly false, and the termination of the employees, in his view, violated the NLRA.
The NLRB’s TNT decision reaffirms the right of employees to engage in concerted activity involving public airing of disputes with their employer while simultaneously sending a strong cautionary message that employees must act within proper bounds in exercising that right, to avoid deliberate and unwarranted harm to the employer’s business. Nevertheless, employers should not assume that the NLRB will apply the TNT decision in an expansive fashion, because of the potential chilling effect on the exercise of employee rights that the NLRB is bound to protect. Accordingly, an employer considering the imposition of disciplinary action upon an employee who the employer believes has exceeded the limits of protected conduct must proceed with caution and only with the advice of counsel.