Labor & Collective Bargaining : Unions Lawyer & Attorney : Jackson Lewis Law Firm : Employee Free Choice Act, Collective Bargaining

The NLRB Acting General Counsel Lafe E. Solomon has issued a Memorandum (OM 11-74) to Board regional officials, dated August 18, 2011, describing his Office's actions involving social media cases in the past year. Solomon explains: "Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules. This report discusses these cases, as well as a recent case involving an employer’s policy restricting employee contacts with the media." The full report is available from the NLRB's website here.

Board social media cases generally involve claims of protected concerted activity by employees under Section 7 of the NLRA. Since these cases often turn on the unique facts presented to the Agency, consultation with labor counsel is recommended for employers facing NLRB charges involving employees' use of Facebook, Twitter and other such media. However, the Acting General Counsel's Memorandum offers useful insights into the Board prosecutor's approach to these kinds of cases in the circumstances described.

If you have any questions about the Memorandum or the NLRA, please contact Richard Greenberg.
 

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The National Labor Relations Board’s prosecutor, its General Counsel, continues to show an avid interest in social media as a medium for complaints against employers.  (The Board itself is an active participant in social media, with a Facebook page, a YouTube channel and a Twitter feed.)

On April 12, 2011, the NLRB General Counsel instructed the agency’s Regional Directors that prior to issuing administrative complaints, they should submit to his office’s Division on Advice all cases “involving employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter,” among other issues. (The General Counsel’s Memorandum is available at http://mynlrb.nlrb.gov/link/document.aspx/09031d458047021e.)  The GC expects that this action will help him in the development of a consistent national policy.

The directive comes in the wake of some well-publicized agency complaints over asserted protected concerted activity on Facebook and Twitter.  In October 2010, the GC filed a complaint accusing a company of firing an employee for criticizing her boss on Facebook.  The case was settled and the company agreed to (1) revise its Internet policy to allow employees to discuss wages, hours and working conditions with co-workers outside of the workplace, and (2) refrain from disciplining or firing employees for engaging in those discussions.

More recently, the GC targeted another social media tool – Twitter.  The GC reportedly had warned a company that it may have reprimanded an employee illegally over her criticism of company management in a Twitter post, in violation of the employee’s right to discuss working conditions with other employees. The matter was resolved when the union and company — which had been negotiating a new contract — reached a tentative contract, including negotiating a new social media policy that would include language that will protect employees’ speech and the right to engage in other concerted activity about working conditions. 

The GC again focused on Facebook after issuing his directive.  On April 27, 2011, the NLRB Regional Director in San Francisco reported the approval of a settlement after a company fired an employee allegedly for posting comments about the company and possible state labor code violations on Facebook.  As part of the settlement, the company agreed to post a notice at the workplace for 60 days stating that employees have the right to comment about terms and conditions of employment on their social media pages and that they will not be terminated or otherwise punished for such right. 

Employers should exercise care from a labor-relations perspective in handling social media issues and treat recent Board scrutiny in these cases as an invitation to revisit their own social media policies.

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