Betty Nelson worked as an emergency medical techni-cian for the First Alert Medical Response ambulanceservice in Redfern, Idaho. One day in a meeting withher supervisor, Nelson was asked to write an incidentreport responding to a customer ’ s complaint concern-ing her service on a recent ambulance call. Nelsonrequested that she be allowed to meet with her localunion representative prior to completing her writtenincident report. Nelson ’ s supervisor denied her request.Later that evening after Nelson ’ s work shift was overshe returned home and posted some negative com-ments about her supervisor on her personal Facebook page. For example, Nelson posted that “ Looks like I ’ mgetting some time off. Love how the company allows a17 to be a supervisor. ” (Note: A 17 is the company codeused to describe a psychiatric patient.) The commentswere read by several co-workers who responded toNelson with messages of support. Nelson then pro-ceeded to post some additional negative commentsabout her supervisor on her personal Facebook page.The company was made aware of Nelson ’ s Face-book postings by an unknown source. The company temporally suspended Nelson and after confirming thatthe negative remarks had been posted to her Facebook page, she was terminated. The company ’ s terminationletter cited a blogging and Internet posting policy pub-lished in the Employee Handbook which prohibitedemployees from making disparaging comments whendiscussing the company or any of its supervisors andprohibited employees from depicting the company inany way over the Internet without receiving priorapproval from an authorized company official.Nelson ’ s union representative filed an unfair laborpractice charge with the National Labor Relations. Board on her behalf. The union argued that the com-ments Nelson made on her personal Facebook pageconstituted “ free speech ” which she was entitled tomake. Employees have a right to discuss terms andconditions of employment with co-workers even if those comments might be interpreted as negative by amanagement official. The union further alleged that thecompany also committed an unfair labor practice by denying Nelson a chance to speak with her union rep-resentative during the investigatory meeting with hersupervisor. Finally, the union charged that the blogging and Internet policy relied upon by the company as thebasis for Nelson ’ s discharge was overly broad inrestricting employees ’ use of communications media like facebook.
Does an employer have any legal right to discipline or discharge an employee for comments the employee makes about the company?
If you were representing the company in this case and the NLRB regional director asked if you would be willing to settle the union’s charges voluntarily, would youdo so or would you insist on your legal right to a formal NLRB hearing on the charges? Explain your reasoning.