The National Labor Relations Board’s Division of Advice has concluded an employer did not violate the National Labor Relations Act for terminating two workers for a statement about their pay and other working conditions in a survey posted online to third parties.  Varsity Brands, Inc., Case 15-CA-110683 (12-23-13).  It recommended the fired workers’ unfair labor practice charge be dismissed, unless withdrawn.

The workers were judges of competitions employed by Varsity Brands, Inc., which promotes and markets cheerleading educational camps, clinics, and competitions across the country.  They prepared and distributed an online survey to other judges and judges’ groups relating to their opinions about their pay, working hours and training.  (The survey went to 21 judges and five cheer-related groups having in excess of 2,300 Facebook members.)  One anonymous participant commented in his response that the company engaged in a practice of changing judges’ scores after the scores were entered by the judges.   The survey results, including the anonymous comment, were widely disseminated, including on Facebook and to six cheerleading media outlets.

After the company’s Vice President learned about the dissemination of the survey results, he sent text messages to one of the judges  expressing frustration and anger about not having been given an opportunity to defend himself against the “slander” and attack on his “ethics and livelihood” prior to the survey’s publication. He also told the judge that he would never publish an accusation that she had “fixed scores.” The Vice President also e-mailed the other judge that the survey included “LITERALLY falsified info[rmation] … [q]uotes that could literally ruin our company” and “[w]e don’t FIX scores.” Ultimately, after several such communications, the company informed the workers that it would no longer use them as judges “for all the reasons we’ve discussed via email and text message.”

Although most of the survey content related to the judges’ employment conditions, which are protected topics, the Division of Advice concluded the score-tampering statement was unprotected.  It determined the two judges were discharged based on the dissemination of the survey’s unprotected score-tampering comment rather than the survey itself.

In its analysis, the Division of Advice found no nexus between the statement and the terms and conditions of employment because there was no evidence the judges who had their scores changed experienced any negative personnel action or were precluded from judging future competitions.  It concluded that the survey did not imply the judges themselves were being asked to engage in score-tampering or that the judges’ individual or collective reputations had been or would be harmed by the accusation.  It also pointed to contemporaneous written communications from the Vice President that the two judges were discharged for their publication of the survey’s unprotected score-fixing comment rather than the survey itself.

Although not binding upon the five-member NLRB, since the decision comes from the Board’s General Counsel’s Office, this Advice Memorandum serves as an important reminder to employers always to tread cautiously in disciplining employees for their online posts, but that employers are not handcuffed in disciplining employees  for legitimate reasons.