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Facebook posts, text message damage accident-prone driver’s discharge claim

The Environmental Protection Agency will be remembered as a favored tool for President Obama to wield his brand of executive authority, most recently demonstrated in sweeping Clean Power Plan (note page 8) and Waters of the U.S. proposals sure to cost consumers and business what critics estimate will be tens if not hundreds of billions of dollars. Right behind the EPA will be the National Labor Relations Board, which has indulged a union-friendly White House through such measures as a rule mandating workplace display of posters detailing employees’ rights to representation; adoption of representation case procedures enabling “ambush” elections; and, reinterpretation of long-held standards for what constitutes a bargaining unit.

NLRB is now on record for pursuing action on behalf of a building materials delivery driver whose spotty truck and site equipment operation was costing his employer an average of $10,000 a month. In a decision informed by common sense and legal duty, Administrative Law Judge Melissa Olivero dismissed an NLRB General Counsel complaint alleging that Bailey, Mich., building materials supplier American Classic Construction Inc. violated the National Labor Relations Act (NLRA) in actions surrounding the driver’s departure.

Facebook posts and text message content, coupled with testimony from American Classic principals and employees, led her to determine the driver quit amid exchanges in a late-December 2014 payday meeting—contrary to the General Counsel’s allegation of discharge. Company co-owners Leon and Jacob Thompson called the meeting to review the driver’s performance since his hiring almost four months prior. In her bench decision, ALJ Olivero cited evidence and testimony showing the driver had been involved in four incidents totaling $30,000–$40,000 in damages: running a delivery truck over fresh concrete flatwork; cracking a crane truck frame through improper lift axle and outrigger engagement; neglecting to activate a forklift parking brake, resulting in the machine’s backing into a construction site trailer; and, through improper equipment guidance, poking a hole in the roof of a customer’s property.

The General Counsel maintained the driver had been discharged; that would have violated the NLRA as the employee and a coworker, two days prior to the meeting, engaged in protected concerted activity by questioning American Classic trucks’ department of transportation inspection status. Section 7 of the Act, ALJ Olivero notes, “protects the rights of employees to engage in protests over what the employees believe to be unsafe working conditions.”

She points to three comments the driver posted to his Facebook page in days leading to and following his American Classic departure. After leaving work on a day the company elected to idle vehicles in question, pending inspection verification, he claimed: “Well I got sent home today because none of are [sic] trucks are up to date on there [sic] federal inspections so not legal to be on the road. You would think that this would be important but I guess not.”

The second and third posts were made after the meeting and the following day, respectively: “Well just got let go today” and “Does anyone now [sic] who to talk to or call about getting fired for not wanting to drive illegal trucks?” While the General Counsel dignified the Facebook page content, the judge found more compelling a text message in which the driver, after leaving with his final paycheck, thanked Jacob Thompson but noted, “Don’t waste your time talking things over with your family. I don’t want to work for you guys.”

Replied Thompson, “I hope you think it through.” A sound and tactful response from a manager who apparently passed up the opportunity for a much more fitting send off: “Don’t let the door hit you.”