As we discussed with participants in our recent Labor and Employment Law Seminar, despite recent setbacks, the National Labor Relations Board continues to issue decisions that are concerning for employers. These decisions, which impact union and non-union employers alike, often take an expansive view of the protections afforded employees by the National Labor Relations Act. In a recent case involving a complaint filed by an (alleged) independent contractor working for a non-union employer, the Board found that the contractor’s electronic communications, directed at employees of a different employer, were protected by the Act because the communications constituted union organizing activity.

In New York Party Shuttle (pdf), the Board first considered whether the complaining party, a tour guide, was an employee or an independent contractor. The Tour Guide was regularly hired by Party Shuttle to provide guided tours of New York City. He also maintained his own tour company, and booked and provided tours through his own company. The Board held that Party Shuttle failed to establish that that the Tour Guide was an independent contractor. In making its decision, the Board applied a common law test that considers a multitude of factors and places the burden on the employer to establish independent contractor status. In this case, the Board found that Party Shuttle failed to establish that the tour guide as an independent contractor.

After determining that the Tour Guide was an employee, the Board turned to the next issue, the Tour Guide’s termination.

The Tour Guide was hired in October 2011, and quickly became displeased with the working conditions at Party Shuttle. After one month on the job (that was fast) the Tour Guide began suggesting to other employees that they form a union. Some of these employees complained to the Party Shuttle that the Tour Guide was harassing them regarding the union issue and that he was overly aggressive and unprofessional with both coworkers and customers. After the holidays, Party Shuttle had few tours available and did not schedule the Tour Guide. In early February of 2012, the Tour Guide sent an email to his FORMER coworkers, at a completely separate tour company, complaining about the working conditions at Party Shuttle. The email contained a number of inaccurate statements about Party Shuttle. The Tour Guide later posted similar comments to Facebook. The Tour guide was given no further assignments by Party Shuttle and he then amended an earlier complaint against Party Shuttle that he had filed with the Board alleging that he was unlawfully terminated.

The Board concluded that Party Shuttle’s failure to provide the Tour Guide with assignments was based on his discussions with other employees regarding union organizing. The Board was not concerned about the timing of the original complaint or Party Shuttle’s argument that the Tour Guide acted inappropriately during interactions with coworkers and customers. In addition, Party Shuttle argued that the Tour Guide’s statements to third parties about Party Shuttle were inaccurate and abusive. Nonetheless, the Board concluded that the Tour Guide’s comments were protected by the Act, even if those comments were directed at employees of another company!

It seems that, regardless of how an employee discusses an issue or with whom, if the employee is discussing union organizing or terms and conditions of employment, those discussions will be protected. It does not seem to matter how other employees feel about the discussion, whether the discussion takes place with non-employees, or whether those discussions violate employer policies. As a result, employers must proceed with caution when attempting to address an employee discussions of the terms and conditions of employment.