CWA, L.1182, 8 OCB2d 18 (BCB 2015) (IP) (Docket No. BCB-4066-14)
Summary of Decision: Petitioner alleged that the NYPD violated NYCCBL § 12-306(a)(1), (2), and (3) when it disciplined an employee for posting negative comments about her supervisors on the Union’s members-only Facebook page. Respondents argued that the employee’s post does not constitute protected union activity and the NYPD has the managerial right to discipline employees who violate its social media policy. They further contend that, in disciplining the employee, the NYPD did not interfere with her ability or that of other Union members to exercise their protected rights under the NYCCBL. The Board held that the NYPD retaliated against the employee for her Facebook post and, in doing so, interfered with Union members’ § 12-305 rights, in violation of NYCCBL § 12-306(a)(1) and (3). The Board found no violation of NYCCBL § 12-306(a)(2). Accordingly, the petition was granted, in part, and denied, in part. (Official decision follows.) ______________________________________________________________
OFFICE OF COLLECTIVE BARGAINING BOARD OF COLLECTIVE BARGAINING
In the Matter of the Improper Practice Proceeding -between- COMMUNICATION WORKERS OF AMERICA, LOCAL 1182, Petitioner, -and- THE CITY OF NEW YORK and THE NEW YORK CITY POLICE DEPARTMENT,
Respondents. ______________________________________________________________
DECISION AND ORDER On August 5, 2014, Communication Workers of America, Local 1182 (“Union”) filed a verified improper practice petition against the City of New York (“City”) and the New York City Police Department (“NYPD” or “Department”). The Union alleges that the NYPD violated § 12-306(a)(1), (2) and (3) of the New York City Collective Bargaining Law (New York City
8 OCB2d 18 (BCB 2015) 2 Administrative Code, Title 12, Chapter 3) (“NYCCBL”) when it disciplined Traffic Enforcement Agent (“TEA”) Sheila Sykes for posting negative comments about her supervisors on the Union’s 1 private Facebook page. Respondents argue that the Union cannot establish that TEA Sykes was engaged in protected union activity and that the NYPD has the managerial right to discipline 2 employees who violate its social media policy. They further contend that, in disciplining TEA Sykes, the NYPD did not interfere with or restrain her ability or that of any other Union member to exercise their protected rights under the NYCCBL. The Board holds that the NYPD retaliated against the employee for her Facebook post and, in doing so, interfered with Union members’ § 12-305 rights, in violation of NYCCBL § 12-306(a)(1) and (a)(3). The Board finds no violation of NYCCBL § 12-306(a)(2). Accordingly, the petition is granted, in part, and denied, in part.
BACKGROUND The Union is the certified collective bargaining representative for NYPD employees in the titles of TEA Levels I and II. The parties are signatories to the 2008-2010 TEA Agreement (“Agreement”), which remains in status quo pursuant to NYCCBL § 12-311(d). TEA Sykes has been an NYPD employee since 2003 and is assigned to the Brooklyn North Traffic Enforcement (“BNTE”) command. The Union administers and maintains a “closed” Facebook page on which its members can post comments, ideas, and observations. The site is available only to Union members and officials and is not accessible by non-Union members or the general public. It has no official 1 The Union also alleged that Respondents violated NYCCBL § 12-306(a)(4) and (c)(4) but subsequently withdrew those claims.
2 Respondents asserted in their answer that the Union’s claims were time-barred but subsequently withdrew this defense.
8 OCB2d 18 (BCB 2015) 3 Department participation or input. On or about July 11, 2013, TEA Supervisor Adriana Bernard, Command Operations 3 Coordinator at BNTE, found a printout of a Facebook post on her desk. Below the name “Sheila Sykes Local 1182,” the post states: SOMEONE NEEDS TO DO SOMETHING ABOUT THOSE LYING ASS SUPERVISOR. WHEN YOU TELL THEM SOMETHING THATS CONCERN YOU THE ONLY THING SUPERVISOR WONG WILL SAID OHHHHHHH. AND FOR SUPERVISOR BROWN (DUMBO) I DONT KNOW WHAT TO SAID ABOUT HIM HE A LOST CASE.
4 (Ans., Ex. 9) (reproduced verbatim, including capital letters) Neither party purports to know how the printout came to be placed on TEA Supervisor Bernard’s desk nor who placed it there. According to the Union, TEA Sykes never publicized her Facebook comments anywhere other than the Union’s closed Facebook page, and her supervisors did not learn of the posting through any action she took. Respondents assert, and the Union does not expressly deny, that the references to “Supervisor Wong” and “Supervisor Brown” in the Facebook post refer to Traffic Supervisor I (“TS I”) Chunsing Wong and TS I Kenneth Brown, both of whom work at BNTE. The NYPD issued a Schedule A Command Discipline Election Report (“Command Discipline Report”) against TEA Sykes. She was notified of the issuance of the command 5 discipline following her return, on April 10, 2014, from a leave of absence. Under “Details of 3 The printout appears to be a reproduction of a “snapshot” of a Facebook page from a cell phone. The top of the page says “Verizon 10:37 AM” and displays a symbol for a battery next to “26%”. (A copy of the printout is attached as an Addendum to this Decision and Order.)
4 Deneita Graham, a viewer of the Facebook post, commented on the Facebook page below the post, “Gm,, lol,, u are to funny,,” (Ans., Ex. 9) (quote reproduced verbatim)
5 The Command Discipline Report was drafted several months prior, on or about September 13, 2013.
8 OCB2d 18 (BCB 2015) 4 Violation,” the Command Discipline Report states: P.G. 203-03, Paragraph A 35-Any other minor violation that, in the opinion of the Commanding/Executive officer is appropriate for a schedule A: Improper Behavior/Conduct Unbecoming.
TEA I Sheila Sykes posted comments on CWA Local 1182s’ Facebook page. The post contained negative comments about Agent Sykes’ supervisors TS I Wong and TS I Brown[.] The posting read as such (TYPE VERBATIM): “Someone needs to do something about those lying ass supervisor. When you tell them something that s [sic] concern you the one thing Supervisor Wong will said ohhhh. And for Supervisor Brown (DUMBO) I don’t know what to said about him he a lost case.” Based on information provided in directives in Operations Order Number Twelve (12) regarding MOS use of Social Media, these comments are detrimental and constitute Conduct Unbecoming.
(Ans., Ex. 10) Respondents contend that TS II Ford intended to reference Patrol Guide (“PG”) 6 206-03, titled “Violations Subject to Command Discipline,” not PG 203-03. (Ans., Ex. 1) A command discipline is defined as “[n]on-judicial punishment available to a commanding/executive officer to correct deficiencies and maintain discipline within the command.” (Ans., Ex. 2) Respondents further contend that the reference to “Paragraph A 35” in the Command Discipline Report should be to “Paragraph A 34”. PG 206-03 lists 34 Schedule “A” violations and nine Schedule “B” violations upon which “the commanding/executive officer concerned may initiate command discipline . . . .” (Ans., Ex. 1) Examples of Schedule A violations include “Absence from meal location, post or assignment” and “Failure to have locker secured or properly tagged.” (Id.) Violation A 34 states: “Any other minor violation that, in the opinion of the commanding/executive officer is appropriate for Schedule A command discipline procedure.” (Id.) Operations Order 12 (“OO 12”), referenced in the Command Discipline Report, was issued 6 A copy of PG 203-03 was not included in the pleadings.
8 OCB2d 18 (BCB 2015) 5 on March 25, 2013, and addresses the “use of social media by members of the service.” (Ans., Ex. 5) OO 12 defines social media as: “online platforms that facilitate social networking, blogging and/or photo and video-sharing. Social media include proprietary social media sites or applications such as Facebook, Instagram . . . .” (Id.) It provides, in pertinent part: Members of the service utilizing personal social media sites are to exercise good judgment and demonstrate the same degree of professionalism expected of them while performing their official duties. Members of the service should be aware that activities on personal social media sites may be used against them to undermine their credibility as members of the Department, interfere with official police business, compromise ongoing investigations and affect their employment status with the Department. Furthermore, information (including digital images) released on social media may endanger the safety of members of the service and/or their family members. Accordingly, members of the service will comply with the following: . . . .
(Id.) OO 12 then lists seven directives with which service members are expected to comply. They include, but are not limited to, prohibitions on posting photographs of themselves in uniform and nonpublic items such as witness statements and crime scene photographs that were gained as a result of their Department position, engaging in any type of social media contact with witnesses, crime victims or lawyers associated with a matter under investigation or pending in criminal court, and revealing Department affiliations of other individuals such as partners or supervisors without their express consent. Under the heading “Department Policy,” OO 12 further provides: This policy applies to both official use of social media and personal use of social media by members of the service. All members of the service are reminded that they are strictly accountable for their conduct at all times, whether on or off duty, inside or outside of New York City. . . .
Members of the service are to be cognizant of their personal use of social media sites. Any activities or statements made on social media sites that are done so in an online domain where users have no reasonable expectation of privacy. Even if a member of the service
8 OCB2d 18 (BCB 2015) 6 has created “private” or “limited access” accounts or has customized “privacy settings”, any statements, photographs, video clips or information which are sent over the internet may still be viewed and disseminated by third parties, even after the content has been edited or deleted by the user.
. . . Violations of this Order may subject members of the service to disciplinary action, including termination from the Department.
7 (Id.) The Department conducts social media training for staff. TEA Sykes attended a training session entitled “Social Networking Sites Alert” on April 17, 2013. There is no evidence in the record addressing what was taught or discussed at the training session. On September 25, 2014, the NYPD found TEA Sykes guilty of the violation alleged in the Command Discipline Report. (Rep., Ex. 2)
POSITIONS OF THE PARTIES Union’s Position The Union contends that the NYPD violated NYCCBL § 12-306(a)(1), (2), and (3) when it 8 disciplined TEA Sykes for posting comments on the Union’s Facebook page. It argues that the 7 The NYPD has revised its social media policy twice since the issuance of OO 12. OO 29 and OO 22, were issued on July 25, 2013 and June 17, 2014, respectively. The revisions set forth in these Orders add information to the policy that is not relevant to the referenced dispute. The revisions did not alter the OO 12 language referenced in the text of this Decision and that language remains in effect.
8 NYCCBL § 12-306(a) provides, in pertinent part: It shall be an improper practice for a public employer or its agents: (1) to interfere with, restrain or coerce public employees in the exercise of their rights granted in section 12-305 of this chapter;
8 OCB2d 18 (BCB 2015) 7 NYPD’s attempt to discipline TEA Sykes is a clear case of management interference in the Union’s internal operations and communications, in violation of NYCCBL § 12-306(a)(1) and (2). The Union asserts that the Board has held that the prohibition on employer interference pursuant to NYCCBL § 12-306(a)(2) is designed to prevent a public employer from “meddling in the internal affairs of the organization” and does not require that “a specific motive to dominate, interfere with, or support an employee organization be established.” (Pet. ¶ 43) It maintains that communications on the Union’s Facebook page are intended to be internal discussions that are the equivalent of statements made during union meetings. These communications are only accessible by Union members and officials. As such, the comments posted by TEA Sykes are privileged union communications and the NYPD’s action taken against her violates NYCCBL § 12-306(a)(2). The Union further argues that the Board has previously found that the NYCCBL safeguards a union’s internal workings and activities, including the right of members to freely communicate with other members and union representatives, and that to prohibit such communication is inherently destructive of employee rights. The Union emphasizes that TEA Sykes never publicized the comments that she posted on the Union’s Facebook page nor were they made in the workplace or during working hours. According to the Union, permitting the (2) to dominate or interfere with the formation or administration of any public employee organization; (3) to discriminate against any employee for the purpose of encouraging or discouraging membership in, or participation in the activities of, any public employee organization . . . .
NYCCBL § 12-305 provides, in pertinent part, that: “Public employees shall have the right to self-organization, to form, join or assist public employee organizations, to bargain collectively through certified employee organizations of their own choosing and shall have the right to refrain from any or all of such activities.”
8 OCB2d 18 (BCB 2015) 8 discipline of a union member for an internal nonpublic communication with fellow union members while off duty in a “strictly union environment” would provide a chilling effect on those rights, and union rights in general, in violation of NYCCBL § 12-306(a)(1), (2), and (3). (Rep. ¶ 22) The Union argues that the NYPD also violated NYCCBL § 12-306(a)(3) when it disciplined TEA Sykes because it had knowledge of her protected union activity and that activity was a motivating factor in the Department’s decision to discipline her. TEA Sykes’ Facebook post is protected because it relates to the employer relationship, which is what the Board requires in order to find that union activity is protected, the Union asserts. Specifically, her post concerned supervisors in the workplace and her interactions with them. The Union contends that the Board has held that employer rules cannot discriminate based on union activity. It argues that the Board has also recognized that communication exchanges in the labor relations context can be intemperate, but should not be subject to discipline. Simply because the NYPD did not like the purported language at issue does not remove it from the realm of protected union activity. According to the Union, the NYPD’s imposition of a penalty on TEA Sykes during the pendency of this proceeding and over the Union’s objection demonstrates its anti-union animus. For all of these reasons, the Union argues, the Board should find that the NYPD’s issuance of discipline to TEA Sykes violated the NYCCBL. City’s Position Respondents argue that the NYPD has a broad managerial right, pursuant to NYCCBL § 12-307(b), to discipline employees who engage in misconduct. Accordingly, the NYPD did not violate the NYCCBL when it issued a command discipline against TEA Sykes for violating its social media policy by making an inappropriate Facebook post. They further argue that the NYPD did not discipline TEA Sykes for retaliatory reasons nor were its actions in disciplining her
8 OCB2d 18 (BCB 2015) 9 inherently destructive of employee rights. Respondents argue that the Union has not established that the NYPD’s discipline of TEA Sykes for her Facebook post was an independent violation of NYCCBL § 12-306(a)(1). The Union has offered no facts to demonstrate that the ability of any member to exercise his or her protected rights was limited by the issuance of TEA Sykes’ command discipline. Respondents emphasize that the NYPD played no role in bringing the post to light. Moreover, the Department makes it clear to its members that social media posts are not private and that social media conduct that violates NYPD policy may result in discipline. Thus, the Union cannot establish an independent violation of NYCCBL § 12-306(a)(1). With regard to the retaliation claim, Respondents argue that the Union has failed to establish a prima facie violation of NYCCBL § 12-306(a)(3). They assert that the Board has “made it clear” that protected union activity under the NYCCBL must be related to the employment relationship, undertaken on behalf of an employee organization, and must not be strictly personal. (Ans. ¶ 64) The post at issue had nothing to do with advancing common interests between TEA Sykes and her colleagues but was rather an effort to disparage her supervisors “without any significant purpose.” (Ans. ¶ 65) Respondents emphasize that the fact that the post was made online does not shield TEA Sykes from discipline. Further, even if it was protected on the Union’s Facebook page, which they do not concede, the post was unprotected once it was printed and distributed at the Department. (Ans. ¶ 65) They note that no NYPD supervisor sought out or publicized the Facebook post; thus it was treated no differently than any other offensive writing used as the basis for discipline. In support of their position, Respondents refer to a National Labor Relations Board (“NLRB”) decision finding that an employee’s Facebook post disparaging a co-worker was not
8 OCB2d 18 (BCB 2015) 10 protected because it was only tangentially related to terms and conditions of employment. They rely on another NLRB decision finding that profane comments made to some coworkers in a private Facebook group chat and shared with the employer by a coworker were unprotected where they merely shared a gripe rather than any concerns about working conditions. Respondents contend that the same rationale applies in the instant matter because TEA Sykes’ post does not represent collective activity but merely a gripe by a single employee about management. Respondents further argue that the Union has failed to establish the second prong of its prima facie case, a causal link between the Facebook post and the discipline, because the Department was made aware of the post through no action of its own. Even if the Union establishes a prima facie case of retaliation, the NYPD has legitimate business reasons for disciplining TEA Sykes. Here, TEA Sykes violated the NYPD’s regulations forbidding conduct unbecoming an employee because her descriptions of her supervisors were “crass, profane, and disrespectful,” according to the NYPD. The command discipline resulted from her publication of these comments “to the world” and not her union activity. (Ans. ¶ 86) Thus, she would have been disciplined for regulation violations even in the absence of protected union activity.
DISCUSSION The issue before the Board is whether the NYPD violated the NYCCBL when it disciplined a Union member for posting comments on the Union’s closed Facebook page. This is a case of first impression for the Board as we have not had occasion to address whether use of social media can fall within the scope of our statute’s definition of protected union activity. The Union alleges violations of several sections of the NYCCBL. We first address the allegation that the NYPD retaliated against TEA Sykes for her Facebook post.
8 OCB2d 18 (BCB 2015) 11 NYCCBL § 12-306(a)(1) and (a)(3) To determine whether an alleged action constitutes impermissible discrimination or retaliation based on anti-union animus pursuant to NYCCBL § 12-306(a)(1) and (a)(3), the Board, in Bowman, 39 OCB 51 (BCB 1987), adopted the test enunciated in City of Salamanca, 18 PERB ¶ 3012 (1985), and its progeny. The test provides that, to establish a prima facie case of discrimination or retaliation under the NYCCBL, the petitioner must demonstrate that: 1. The employer’s agent responsible for the alleged discriminatory action had knowledge of the employee’s union activity; and
2. The employee’s union activity was a motivating factor in the employer’s decision.
Bowman, 39 OCB 51, at 18-19; see also Local 1181, CWA, 3 OCB2d 23 (BCB 2010). If a petitioner alleges sufficient facts concerning these two elements to establish a prima facie case, “the employer may attempt to refute petitioner’s showing on one or both elements or demonstrate that legitimate business motives would have caused the employer to take the action complained of even in the absence of protected conduct.” DC 37, 1 OCB2d 5, at 64 (BCB 2008) (citing SBA, 75 OCB 22, at 22 (BCB 2005). With regard to the first prong of the Bowman test, the petitioner must show that the union activity was protected and that management had knowledge of that activity. Here, the Union asserts that TEA Sykes’ Facebook post was protected activity. NYCCBL § 12-305 provides that public employees “shall have the right to self-organization, to form, join or assist public employee organizations, to bargain collectively through certified employee organizations of their own choosing and shall have the right to refrain from any or all of such activities.” The Board has held that protected employee rights under NYCCBL § 12-305 include participation in union activity such as holding a union position, acting
8 OCB2d 18 (BCB 2015) 12 9 at the union’s request, filing a grievance, or advocacy on behalf of other union members. See, e.g., Local 375, DC 37, 5 OCB2d 27, at 14 (BCB 2012) (employee’s email to colleagues regarding employer’s alleged misapplication of the collective bargaining agreement deemed protected activity); Local 376, DC 37, 5 OCB2d 31, at 18 (Board found union member’s actions were protected when she sought union’s assistance in appealing disciplinary charges) (BCB 2012); SSEU, L.371, 79 OCB 34 at 9-10 (BCB 2007) (employee who testified at co-worker’s disciplinary hearing at union’s request was engaged in protected activity); Washington, 71 OCB 1, at 13 (BCB 2003) (individual’s filing of out-of-title grievance is protected union activity); Nelson, 47 OCB 36, at 9 (BCB 1991) (denying motion to dismiss where allegations that one employee filed a grievance for a co-worker and another wrote a letter in support of a grievance were sufficient to establish protected activity). Similarly, the Public Employment Relations Board (“PERB”) has held that, “[e]mployee statements and actions that are organized, prompted or encouraged by an employee organization will, in general, be found to be protected concerted activity for purposes of the [Taylor] Act . . . .” County of Tioga, 44 PERB ¶ 3016, at 3061 (2011). Actions that appear to have only an individual purpose and are not union-sponsored or do not promote the collective welfare of the bargaining unit may not be protected. See, e.g., Archibald, 57 OCB 38, at 19-20 (BCB 1996) (letter to Mayor threatening legal action if a supervisor did not apologize to a co-worker who was allegedly mistreated was not protected activity). 9 The NYCCBL’s protections apply only to union activity, and do not include concerted activity as more broadly defined under the National Labor Relations Act (“NLRA”). See Washington, 71 OCB 1, at 17-19 (BCB 2003) (citing Rosen v. PERB, 72 N.Y.2d 42 (1988)); see also CIR, 67 OCB 45, at 7 (BCB 2001) (noting that “concerted activity that falls short of the exercise of rights enumerated in NYCCBL § 12-305 does not support a claim of protected activity”). Similarly, § 202 of the Taylor Law includes the right to form, join, or assist a labor organization, but does not include the right to engage in “concerted activity.” See Rosen, 72 N.Y.2d 42, at 49.
8 OCB2d 18 (BCB 2015) 13 When analyzing speech in the context of union activity, we have also consistently held that even disparaging speech is protected when it otherwise meets the criteria for protected union activity. See Brown, 3 OCB2d 49, at 14 (BCB 2010) (union officials’ negative remarks about management to new correction captains were protected); UFA, 1 OCB2d 10, at 22-23 (union president’s public criticism of working conditions was protected); see also Village of Scotia, 29 PERB ¶ 3071, at 3170 (1996) (“We have protected a range of employee speech because we believe firmly that the labor relations process must tolerate robust debate of employment issues, even if occasionally intemperate.”). We find that TEA Sykes was engaged in protected union activity when she posted her comments on the Union’s Facebook page. We reach this conclusion for multiple reasons. First, TEA Sykes posted her comments on the Union’s closed Facebook page, access to which is restricted to Union members. Here, the Union hosted a Facebook page for the exclusive use of its members to communicate. Posts in this type of forum are akin to statements made during a union meeting or a member’s letter or comments that are published in a union newsletter. Therefore, we conclude that TEA Sykes’ participation in the Union-sponsored Facebook forum for exclusively Union members is protected activity under the NYCCBL. Further, we find that the content of TEA Sykes’ Facebook post is related to the employment relationship. Specifically, TEA Sykes complained about the fact that her supervisors are not responsive to her raising issues regarding work. In addition, the post pertains to the collective welfare of TEA Sykes’ co-workers. Her remark that “someone needs to do something about those lying ass supervisors,” demonstrates, however inartfully, that she was discussing with and seeking assistance from other Union members in addressing what she perceived was the lack of responsiveness of her supervisors. See, e.g., New York City Transit
8 OCB2d 18 (BCB 2015) 14 Authority (Alston), 20 PERB ¶ 3065 (1987) (employee’s distribution of literature concerning his disciplinary action to supervisor and bargaining unit members found to be a solicitation of bargaining unit support for his position that the discipline was improper and was thus protected). Contrary to Respondents’ position, we do not find that TEA Sykes’ Facebook post was merely a gripe about her supervisors. Respondents rely on two recent NLRB cases to support their argument that TEA Sykes’ Facebook post did not relate to working conditions and is thus not protected under the NYCCBL. Both cases, Tasker Healthcare Group a/k/a Skinsmart Dermatology, NLRB Case No. 04-CA-094222, 2013 WL 2285967 (NLRBGC), and The Wedge Corporation d/b/a The Rock Wood Fired Pizza & Spirits, NLRB Case No. 19-CA-32981, 2011 10 WL 4526829 (NLRBGC), analyze comments posted on Facebook by employees. However, we 11 are not persuaded that the analysis applied in those cases is applicable here. As stated earlier, TEA Sykes’ Facebook post was made to fellow union members about a workplace issue. Both Tasker Healthcare Group and The Wedge Corporation address issues that arose in non-union environments and comments that the Assistant General Counsel found to be either an “individual gripe” or did not “implicate terms and conditions of employment.” See Tasker Healthcare Group, 2013 WL 2285967, at *2; The Wedge Corporation, 2011 WL 4526829, at *1. In Tasker Healthcare Group, an employee posted comments to a Facebook “group
10 Both decisions were issued by the NLRB’s Office of the General Counsel in the form of an Advice Memorandum.
11 As noted in footnote 9, the scope of protected employee activities under the NYCCBL is narrower than the scope of activities protected under NLRA § 7. Unlike § 7 of the NLRA, our statute does not protect employees who “engage in concerted activities for mutual aid and protection.” 29 U.S.C. § 157.
8 OCB2d 18 (BCB 2015) 15 12 message” initiated by a former coworker and sent to both current and former employees. The comments stated, “They [the Employer] are full of shit . . . . They seem to be staying away from me, you know I don’t bite my [tongue] anymore, FUCK . . . FIRE ME . . . Make my day. . .” Tasker Healthcare Group, 2013 WL 2285967, at *1. In The Wedge Corporation, the employee posted disparaging comments about a co-worker and the employer on her Facebook page, accusing the employee of cheating customers and the employer of looking the other way. Her Facebook “friends” included both current and former employees. In contrast, TEA Sykes’ post was made on a union-sponsored page intended for fellow union members, and addressed work issues with supervisors. We therefore do not find that TEA Sykes’ conduct was analogous with 13 that of the employees in these NLRB cases. The remainder of the first prong of the Bowman test concerns the employer’s knowledge of the protected activity. There is no dispute that the NYPD was aware of TEA Sykes’ protected union activity. While NYPD management may not have had knowledge of the Facebook post when it was initially posted, the Department became aware of it when TEA Supervisor Bernard discovered a photocopy of the post on her desk. Accordingly, we find that the Union has established the first prong of the Bowman test. The second prong of the Bowman test requires proof of a causal connection between the alleged improper act and the protected union activity. See SBA, 75 OCB 22, at 22. The
12 The Memorandum notes that “Facebook allows users to send messages to a group of people using the site’s internal email messaging system. Only invited individuals may view and contribute to the conversation.” Tasker Healthcare Group, 2013 WL 2285967, at *1 n 2.
13 It is noteworthy that in the context of discussing what constitutes protected activity under the NLRA, the NLRB Assistant General Counsel emphasized that “when employees engage in conduct to address the job performance of their coworkers or supervisor that adversely impacts their working conditions, their activity is protected.” The Wedge Corporation, 2011 WL 4526829, at *3 (citing NLRB cases).
8 OCB2d 18 (BCB 2015) 16 petitioner may carry its burden of proof “by deploying evidence of proximity in time, together with other relevant evidence.” CWA, L. 1180, 77 OCB 20, at 14 (BCB 2006). This proof must rely on “specific, probative facts rather than on conclusions based on surmise, conjecture or suspicion.” Feder, 1 OCB2d 27, at 17 (BCB 2008). Absent an “outright admission of any wrongful motive, proof of the second element must necessarily be circumstantial.” CWA, L. 1180, 77 OCB 20, at 15 (citation omitted). Here, it is undisputed that the NYPD issued a command discipline against TEA Sykes as a direct result of her Facebook post. Indeed, the Command Discipline Report explicitly states that the Department sought to discipline her for the comments she posted on the Union’s Facebook page. We therefore find that, on this particular record, the Union has established a prima facie case of retaliation. The burden now shifts to Respondents to establish that the NYPD’s actions were motivated by a legitimate business reason. See Colella, 79 OCB 27, at 58 (BCB 2007). Respondents argue that the NYPD would have issued a command discipline to TEA Sykes even in the absence of her protected union activity because she violated the Patrol Guide Policy by engaging in conduct unbecoming of an employee. This conduct consisted of posting “crass, profane and disrespectful” comments about her superiors. In this instance, Respondents maintain that the command discipline resulted from her publication of these comments “to the world” and not her union activity. Thus, they assert, the NYPD had a legitimate business reason for disciplining TEA Sykes. This Board has previously held that an employee is not immunized against appropriate and proper disciplinary procedures merely because the actions leading to discipline occurred during otherwise protected activity. See CSTG, L. 375, 7 OCB2d 16, at 26 (BCB 2014) (citing Ornas, 65 OCB 12, at 7 (BCB 2000)). Indeed, not all speech made in the context of union activity and
8 OCB2d 18 (BCB 2015) 17 regarding the employment relationship is considered protected activity. See, e.g., Local 376, DC 37, 4 OCB2d 58, at 13 (BCB 2011) (shop steward lost statutory protection when, during rant about work-related issues, he repeatedly hurled personal insults at supervisor); New York City Transit Authority, 34 PERB ¶ 3025, at 3058 (2001) (“there are circumstances in which overzealous behavior on [a union representative’s] part may constitute misconduct . . . . Consequently, inappropriate conduct, even if part of a union activity which is protected, will not shield an employee from its consequences.”) Accordingly, we must examine whether TEA Sykes’ conduct was so egregious or inappropriate as to lose the protection of our statute. This Board recently held that emails sent by a union delegate to his agency supervisors did not lose statutory protection because he made inappropriate comments about management. In CSTG, L. 375, 7 OCB2d 16, the employer issued a warning memorandum to the employee-delegate because his emails, which labeled a supervisor as abusive and “hypocritical” and claimed that the supervisor created a hostile work environment, had an abusive and derogatory tone. Id. at 12. The Board reviewed the context of the emails stating, “(w)hen analyzing employee speech, it is not necessarily the specific words used, but the context in which the remarks are made that is often dispositive of when an employee’s comments are considered protected.” CSTG, L. 375, 7 OCB2d 16, at 26 (citations and internal quotation marks omitted); see also City of Utica, 33 PERB ¶ 3039 (2000) (context and recipients of the words and message conveyed must be considered in determining whether statements are protected by the Taylor Law). The Board found that the employee’s comments were part of an exchange between employees involved in labor relations and were pertinent to the labor issues discussed. Analyzing the union delegate’s speech in the context of PERB precedent, the Board also concluded that the comments and tone of the emails were “not so flagrant or egregious as to lose protection” of the NYCCBL. CSTG, L.
8 OCB2d 18 (BCB 2015) 18 375, 7 OCB2d 16, at 27; see also Village of Scotia, 29 PERB ¶ 3071. In examining TEA Sykes’ post and the context in which the remarks were made, we find that her Facebook comments were not so egregious as to lose their protected status. Here, the comments at issue were made on a private web page that was intended for an audience of exclusively Union members. As noted earlier, this forum is more analogous to that of a union meeting or an internal union newsletter than to a website accessible by the general public or a face-to-face meeting with a supervisor. See Village of Scotia, 29 PERB ¶ 3071 (finding relevant the fact that union president’s derogatory statements about the police chief were not published in the local press or made to the chief in the presence of staff but were stated in a letter to village trustees). There is also no indication in the facts before us that TEA Sykes had the intent to reach a larger audience than Union members or took any action to publicize her comments outside the forum in which she published them. Further, as to the comments themselves, we find that they were not “particularly controversial or offensive in a labor relations setting.” See CSTG, L. 375, 7 OCB2d 16, at 27 (quoting Village of Scotia, 29 PERB ¶ 3071, at 3170). Accordingly, we find that the Respondents’ have not shown a legitimate business reason for disciplining TEA Sykes for her Facebook post. We note that although the NLRA contains a broader definition of employee activity that is protected, the NLRB has similarly held that certain activity loses its statutory protection under the NLRA when the statements are disloyal or made with reckless disregard for the truth. In Three D, LLC d/b/a/ Triple Play Sports Bar and Grille, 361 NLRB No. 31 (2014), the NLRB recently analyzed whether the Facebook communications by a group of restaurant employees amounted to “disloyal disparagement” of their employer or whether they were uttered “with knowledge of its falsity, or with reckless disregard of whether it was true or false,” so as to warrant the loss of
8 OCB2d 18 (BCB 2015) 19 statutory protection. Id. at 5. The comments were made on one of the employee’s personal Facebook page and concerned whether the employees could owe more income taxes than expected based on what they believed were paperwork errors by the employer. In the context of that conversation, one employee commented about the restaurant owner, “I owe too. Such an asshole.” Id. at 2. Another commented, “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money. . . . Wtf!!!!” Id. The employer terminated the two employees who made the referenced comments after learning about their Facebook posts. Applying the standard established in NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953), and its progeny, the NLRB held that the comments at issue did not lose the protection of the NLRA because they addressed an ongoing labor dispute, they were not addressed to the public, and they were not “so disloyal . . . as to lose the [NLRA’s] protection” under this standard. See Triple Play Sports Bar, 361 NLRB No. 31, at 5. The NLRB further held that the comments were not defamatory under the standard set forth in Linn v. Plant Guards Local 114, 383 U.S. 53 (1966), and its progeny, because the Employer failed to meet its burden of establishing that they were “maliciously untrue, i.e., were made with knowledge of their falsity or with reckless disregard for their truth or falsity.” Id. at 6. It noted that the employee’s characterization of the Employer as an “asshole” cannot reasonably be read as a statement of fact 14 but rather was the voicing of a negative personal opinion. The same can be said of TEA Sykes’ comments in the instant matter. Respondents have 14 The NLRB also held that the Employer violated the NLRA by discharging the two employees pursuant to its Internet/Blogging policy because it determined that the policy would “reasonably tend to chill employees in the exercise of their Section 7 rights.” See Triple Play Sports Bar, 361 NLRB No. 31, at 6.
8 OCB2d 18 (BCB 2015) 20 offered no evidence to establish that her post about her supervisors’ unresponsiveness amounted to “disloyal disparagement” of the employer or that it was uttered “with knowledge of its falsity, or with reckless disregard of whether it was true or false,” so as to warrant the loss of statutory protection. See Triple Play Sports Bar, 361 NLRB No. 31, at 6. Her other comments about her supervisors were merely her personal opinion and thus cannot be said to be “maliciously untrue.” 15 See id. While the Board does not condone the manner in which TEA Sykes refers to her supervisors in the Facebook post, in light of the circumstances presented herein, we cannot conclude that the post was so egregious as to lose the protection of the NYCCBL. See CSTG, 7 OCB2d 16; Village of Scotia, 29 PERB ¶ 3071, at 3169 (evaluating concerted activity within “the totality of all relevant circumstances, with a focus upon the purpose and effect of that activity”). We emphasize, however, that our holding in this case should not be interpreted to stand for the proposition that all employee speech on an employee organization’s private social media site is protected under the statute. Based on our findings, we conclude that the NYPD violated § 12-306(a)(3) of the NYCCBL by issuing a command discipline to TEA Sykes for engaging in the protected union activity described herein and that this discipline was also inherently destructive of important employee rights, in violation of § 12-306(a)(1). See OSA, 7 OCB2d 20, at 27 n. 6 (BCB 2014) (concluding that the Board’s determination of a derivative § 12-306(a)(1) violation of the petitioner’s retaliation claim makes it unnecessary to consider separately whether there was an independent § 12-306(a)(1) violation). 15 This finding is in accord with prior Board decisions in which we held that the expression of negative remarks or a derogatory opinion about a superior, within the context of the collective bargaining relationship, is protected under our law. See, e.g., Brown, 3 OCB2d 49, at 14-15; PBA, 63 OCB 16, at 8, supra.
8 OCB2d 18 (BCB 2015) 21 NYCCBL § 12-306(a)(2) The Union argues that when the NYPD disciplined TEA Sykes, it also violated NYCCBL § 12-306(a)(2) by meddling in the internal affairs of the Union. NYCCBL § 12-306(a)(2) provides that it is an improper practice for an employer to “dominate or interfere with the formation or administration of any public employee organization.” We have held that an employer violates NYCCBL § 12-306(a)(2) if it: has interfered with its formation or has assisted and supported its operation and activities to such an extent that it must be looked at as the employer’s creation instead of the true bargaining representative of the employees. Interference that is less than complete domination is found where an employer tries to help a union that it favors by various kinds of conduct, such as giving the favored union improper privileges, or recognizing a favored union when another union has raised a real representation claim concerning the employees involved.
Feder, 5 OCB2d 14, at 30 (BCB 2012) (quoting Moriartes, 1 OCB2d 34, at 11(BCB 2008), affd., Matter of Moriartes v. NYC OCB, Ind. No. 114094/08 (Sup. Ct. N.Y. Co. March 15, 2010) (Sherwood, J.) (citation and quotation marks omitted). Here, while the NYPD’s issuance of a command discipline interfered with Union members’ protected rights, the facts in the record do not demonstrate that this action served to dominate or interfere with the administration or internal affairs of the Union, within the meaning of NYCCBL § 12-306(a)(2). Accordingly, we dismiss this claim.
8 OCB2d 18 (BCB 2015) 22 ORDER Pursuant to the powers vested in the Board of Collective Bargaining by the New York City Collective Bargaining Law, it is hereby ORDERED, that the improper practice petition, docketed as BCB-4066-14, filed by Communication Workers of America Local 1182, be and hereby is, granted, to the extent that the New York City Police Department violated NYCCBL § 12-306(a)(1) and (a)(3) when it issued a command discipline to TEA Sheila Sykes for engaging in protected union activity; and it is further ORDERED, that the referenced improper practice petition be and hereby is, denied, to the extent that it alleges a violation of NYCCBL § 12-306(a)(2); and it is further ORDERED, that the New York City Police Department rescind the command discipline against TEA Sheila Sykes; and it is further ORDERED, that the New York City Police Department shall cease and desist from engaging in discriminatory enforcement of its social media policies against TEA Sheila Sykes; and it is further ORDERED, that the New York City Police Department post this Notice for no less than thirty (30) days at all locations it uses for written communications with employees represented by Communication Workers of America Local 1182. Dated: May 28, 2015 New York, New York
SUSAN J. PANEPENTO CHAIR
GEORGE NICOLAU MEMBER
CAROL A. WITTENBERG MEMBER
8 OCB2d 18 (BCB 2015) 23 M. DAVID ZURNDORFER MEMBER
PAMELA SILVERBLATT MEMBER
(I concur. See attached.) CHARLES G. MOERDLER
(I concur. See attached.) GWYNNE A. WILCOX
MEMBER
MEMBER
8 OCB2d 18 (BCB 2015) 24 CONCURRING OPINION OF MEMBER CHARLES G. MOERDLER, IN WHICH MEMBER GWYNNE A. WILCOX JOINS
I concur in the judgment. In my view, however, there exists a more fundamental reason for the holding. The claimed offensive conduct involved a private and closed Facebook page, available only to Union members and not an official agency site. To my mind this is protected speech and to the extent the Directives are construed as regulating such speech the regulations, in my view, violate First Amendment protections and are unenforceable.
CHARLES G. MOERDLER MEMBER
GWYNNE A. WILCOX MEMBER
NOTICE TO ALL EMPLOYEES PURSUANT TO THE DECISION AND ORDER OF THE BOARD OF COLLECTIVE BARGAINING OF THE CITY OF NEW YORK AND IN ORDER TO EFFECTUATE THE POLICIES OF THE NEW YORK CITY COLLECTIVE BARGAINING LAW
We hereby notify: That the Board of Collective Bargaining has issued 8 OCB2d 18 (BCB 2015), determining an improper practice petition between Communication Workers of America Local 1182, and the City of New York and the New York City Police Department.
Pursuant to the powers vested in the Board of Collective Bargaining by the New York City Collective Bargaining Law, it is hereby:
ORDERED, that the improper practice petition, Docket No. BCB-4066-14, filed by Communication Workers of America Local 1182, and the same hereby is, granted to the extent that the New York City Police Department violated New York City Collective Bargaining Law § 12-306(a)(1) and (a)(3) by issuing a command discipline against TEA Sheila Sykes as a result of her protected union activity; and it is further
ORDERED, that the referenced improper practice petition be and hereby is, denied, to the extent that it alleges a violation of NYCCBL § 12-306(a)(2); and it is further
ORDERED, that the New York City Police Department rescind the command discipline against TEA Shiela Sykes; and it is further
ORDERED, that the New York City Police Department shall cease and desist from engaging in discriminatory enforcement of its social media policies against TEA Sheila Sykes, and it is further
ORDERED, that the New York City Police Department post this Notice for no less than thirty (30) days at all locations it uses for written communications with employees of Communications Workers of America Local 1182.
New York City Police Department (Department)
Dated: _________________________________ (Posted by) _________________________________ (Title)
This Notice must remain conspicuously posted for 30 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.