RIGHT OF EXPRESSION
Jeff Perry, Business Agent
Things are always changing. This is especially true of technology and the way we communicate with each other. One thing hasn’t changed though; How and what is communicated can get us in trouble.
Years ago, employees often got in trouble for what they said at the local bar within earshot of co-workers or what they said to others while still in uniform. While you can still get in trouble the old fashion way, it is becoming much more common to get in trouble for what you post on Facebook or some other digital format. Unfortunately, there is not much consensus on what is acceptable and what isn’t in the labor law field of arbitration. Each case depends on their own set of facts and circumstances. Here is a sampling of how some arbitrators said they would rule given the following scenario:
An Officer writes negatively about their sergeant on Facebook. The Officer does not mention the sergeant’s or Employer’s name. However, many of the Officer’s Facebook followers know who the Employer is and figure out who the sergeant is. One of the Officer’s followers forwards some of the comments to the sergeant. The sergeant issues a verbal warning to stop posting negative comments. The Officer’s next negative post results in the Chief issuing a suspension for insubordination. Since it was posted off-duty and off-site, the union grieved the discipline.
The first arbitrator reasoned that such activity amounted to protected rights under the National Labor Relations Act, which is mirrored by the State Employment Relations Board in Ohio. That is, employees have some protected rights to express concerns with such issues as compensation and working conditions. Grievance granted.
The second arbitrator would need evidence proving who else had seen the post and how it negatively impacted the Employer. Without such proof, the arbitrator felt it was normal to complain about supervisors. Grievance granted.
Number three arbitrator felt it was very difficult to differentiate between on-the-job and off-duty related work. The arbitrator felt the order to stop posting was reasonable since it was limited to negative comments. Grievance denied.
The fourth arbitrator opined that there was a rational nexus between the post and work. Therefore, if the comments were actually derogatory, they would rule as though they had been uttered at the department. Grievance denied.
The final arbitrator compared the post to speaking at a bar with some fellow officers. No discipline should be given unless the Officer posted the identity of the sergeant and department as well. Grievance granted.
The grievance was granted more often then not. However, the arbitrators could easily have been swayed to opposite positions with very few changes. It pays to post positive rather than risking the negative consequences. It makes even more sense to not to post about anything except family.