by James Hyatt
The road map keeping track of social media charges and complaints at the National Labor Relations Board is getting more interesting and complicated.
The agency’s interest in legal issues posed by comments on websites such as Facebook and Twitter first drew wide attention last year. An NLRB regional office said it planned to file an unfair labor practice complaint against an ambulance company for firing an employee who posted negative Facebook comments about her supervisor. (The case was settled early this year when the company agreed to revise its rules to ensure it didn’t improperly restrict employees from discussing wages, hours and working conditions with co-workers and others while not at work. The dismissal was handled in a separate private agreement.)
Now, a new report from the NLRB’s Acting General Counsel, and a survey of NLRB cases by the U.S. Chamber of Commerce disclose a much broader range of social media situations being examined at the agency.
The Chamber’s report, based on a Freedom of Information Act request, turned up more than 129 cases “involving social media in some way. While most of these cases are at the very initial stage, and may not be meritorious at all, some are more advanced,” the Chamber said.
The survey found two Board decisions involving social media, as well as two decisions by administrative law judges. The Board’s general counsel has issued complaints in four other cases, as well as ten memoranda on social media.
The NLRB’s Acting General Counsel, in mid-August, released a report reviewing the outcome of investigations into 14 cases involving use of social media as well as employers’ media policies.
In four cases, the NLRB’s Division of Advice found that employees using Facebook were engaged in “protected concerted activity” in discussing terms and conditions of employment; in five other cases, the activity wasn’t protected.
Employers aren’t the only subject of Board inquiries. “In one case, it was determined that a union engaged in unlawful coercive conduct when it videotaped interviews with employees at a nonunion jobsite about their immigration status and posted an edited version on YouTube and the Local Union’s Facebook page.”
The Chamber’s report was first brought to our attention via an article by Michael C. Schmidt, a member of the law firm Cozen O’Connor. Mr. Schmidt says the survey raises five important points:
— Issues before the NLRB aren’t limited to union facilities
— Overbroad employer policies “apparently have been problematic for the NLRB. Not everything is inappropriate for a social media policy, and the NLRB will not deem every social media policy to be violative of the law.”
— “How you handle and seek to resolve whatever action you take will go a long way in determining the outcome of an NLRB complaint.”
— Firms need appropriate monitoring policies and practices. “There is a big difference between public postings and surreptitious discovery.”
— “No quick triggers” in reacting to social media events. “Companies still appear to be more sensitive to (and, therefore, more likely to react more quickly to) social media activity.”
The Chamber report summary found the most common social media issues at the NLRB involve “overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts.”
In addition, the NLRB has examined whether an employer bargained with an existing union over social media policy, as well as union communications involving social media.
The Chamber report noted that the Division of Advice has found in at least six cases that social media posts weren’t protected activities protected by the National Labor Relations Act. One case involved “mere griping.” In another, “an employee was demoted after posting that he expressed his desire for the employer’s building to collapse during an earthquake while members of management were inside. The region determined that the comments could reasonably be considered to be disloyal and were unrelated to working conditions.”
Eric B. Meyer, an attorney with the law firm Dilworth Paxson LLP, reviewed the NLRB report and concluded, among other things:
— Except in very limited circumstances, you can’t discipline employees who discuss workplace responsibilities and performance together online.
— You can’t discipline any employee who seeks input online from a co-worker about a dispute at work.
— You can’t discipline an employee for clicking the “Like” button on Facebook.
— You can’t discipline an employee who continues the course of concerted activity that began in the workplace by vocalizing the sentiments of his co-workers online.