Both Union and Non-Union Employers Under Scrutiny by NLRB

June 2011

The National Labor Relations Board’s (NLRB) continues to scrutinize and challenge the social media policies of both union and non-union employers. Citing its belief that over-reaching policies violate the National Labor Relations Act (NLRA), the NLRB continues its efforts to ensure employers do not unduly restrict employees’ rights to post comments on social media. To date, the NLRB’s focus has been on whether the employers’ actions violate Section 7 of the NLRA by restricting employees’ abilities to engage in concerted, protected activity.

Most recently, the NLRB has issued a complaint alleging that a Buffalo non-union, non-profit organization which provides aide to low-income clients violated the NLRA by firing five employees over their Facebook comments. Specifically, an employee began a discussion on her personal Facebook page about a remark she overheard another co-worker make disparaging the company’s workload and working conditions. The posting generated responses and comments from other employees, who also criticized working conditions. Upon learning of the Facebook comments, the company terminated the five employees that participated in the online discussion, finding their behavior constituted harassment of the employee mentioned in the initial posting. The NLRB, however, views the employer’s actions as contrary to Section 7 of the NLRA since the employees were discussing their own working conditions. A hearing on the matter is scheduled in Buffalo, New York, for June 22.

This recent complaint comes on the heels of a highly publicized case involving an employee’s use of “twitter.” In that case, a local newspaper terminated a reporter for repeatedly, and despite warnings, making inappropriate comments in his news “tweets,” including one in which he called the reporters on a local television channel “stupid.” The reporter was terminated and filed a charge with the NLRB. The NLRB General Counsel’s Office acknowledged that, “in warning the Charging Party to cease his inappropriate tweets, and then discharging him for continuing to post inappropriate tweets, the Employer made statements that could be interpreted to prohibit activities protected by . . . the NLRA.” However, in that instance, the General Counsel’s Office recommended dismissal of the Charge because the employee’s discharge was based on his violation of workplace policies and disregard of his employer’s repeated warnings to cease his unprofessional tweets.

The interesting difference between the earlier situation and the most recent complaint is the fact that the Buffalo case involves a non-union company. Employers must keep in mind that the NLRA’s prohibition on restricting the “concerted activity” of employees applies to both union and non-union workers. 

Whether the outcome of the Buffalo matter will be as favorable to the employer as that in the tweeting case remains to be seen. One fact, however, remains clear: social media policies must be drafted and enforced with care. Indeed, the NLRB has social media cases pending in almost every Region. Just recently, the Acting General Counsel of the NLRB made two notable comments regarding social media: (1) employers will be seeing a series of memos coming from his office on social media policies and the NLRA; and (2) inserting a disclaimer in your social media policy stating that ”nothing in this policy is intended to interfere with any employee’s Section 7 rights or rights under the National Labor Relations Act” may aid in avoiding liability, but it should specifically reference Section 7 of the NLRA. Let me add the lament of a 40 year practitioner before the NLRB’s Buffalo Region – whatever happened to the Supreme Court’s admonition in Jefferson Standard “there is no more elemental cause for discharge of an employee than disloyalty to his employer.”