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National Labor Relations Board and Social Media Policies National Labor Relations Board has been an important federal agency that administers and enforces the National Labor Relations Act of 1935, being and important middleman in relationship between employers and employees. The area of our interest is section 7 of the National Labor Relations Act (29 U.S.C. §157) that permits employees to engage in so called "protected concerted activity” and the recent changes that needed to be brought in order for the Act to catch up with modern day technology advances. Internet has penetrated our lives and social networks started to play an important role in our daily communication. As with everything else, employment and issues associated with it are often being discussed between employees. Reasonably, there is a number of concerns regarding this particular type of online activity and NLRB had to step in in order to clarify its standing regarding these concerns and provide social network communication policies. Social networks like Facebook, Twitter and LinkedIn have become the central communication arena for various companies’ employees and social media policies were established by various employers in order to limit what and how can be expressed when communicating online. The idea is to discourage potential discussions that portray the company in a negative way. Employers also don’t want their employees to disparage anything that is company-related. Very often violation of these policies led to firing of those who engaged in the aforementioned online activity. NLRB has ruled, however, that these policies restrict workers’ right to discuss work conditions freely and without fear of retribution. In essence, NLRB sees no difference between the online part and the offline parts of discussion, if the topic falls under NLRB regulatory activities.
Major companies like Enterprise-Rent-A-Car and Wal-Mart had to rewrite their policies regarding social media communication in order to avoid violating the new rules NLRB created regarding communicating through platforms like Facebook, Twitter and LinkedIn, updating traditional rules to a new technology. In doing so, they were advised to be more specific in what they restrict from communicating. For example, in a ruling on September 7th of 2012, NLRB rejected Costco’s restriction to post anything that “damages the company or any person’s reputation” as overly broad. In doing so, the Board explained that if this policy is taken to the offline world, then it would limit Costco’s employees right to free speech under the Act. On the other hand, looking at Wal-Mart social media policies, NLRB approved Wal-Mart’s prohibition of “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.”
There are different standards that NLRB uses when resolving issues related to workers’ communication through social media. For example, NLRB has found it permissible for an employer to act against a lone worker ranting on the Internet. There is a number of guidelines that will make it easier for companies in adapting to NLRB’s social media policies. First of all, NLRB does not like when unions or attempts to unionize are restricted and puts such cases under particular scrutiny. The biggest reason is because unions are the heart of NLRB, providing necessary lobbying support for the Board in the U.S. Congress. Opinions are also under strict protections, even if factually incorrect. As long as they are relevant to working conditions and wages. Generic and overly broad “courtesy” clauses aren’t welcome either. As mentioned before, in practicality, NLRB wants online discussions to enjoy the same level of protection as communication via traditional ways. Thus, allowing broader clauses poses serious risk for a company of any caliber. There is also certain degree of risk when restricting employees’ ability to be interviewed in an unauthorized fashion, or when doing it outside to third parties. NLRB upheld a clause that prohibits “bad mouthing” by employees, however. On the other hand, employers are allowed to prohibit employees’ personal grievances and rants online. As long as limitations do not discourage protected speech, they don’t violate the Act. Then there are company marks - they may be prohibited from commercial use. Thus, an employee can still use the mark for non-commercial use like work related discussions or labor related activities. Savings clause would be a helpful tool, but will not save, if other serious violations are found. Narrowly tailored confidentiality clauses are also acceptable, however wages, workplace conditions and employee or company performance are not allowed to be completely restricted from discussion online. Lastly, the language used when setting up a company policies plays an important role, since most provisions NLRB considered unfair to employees were written as “absolutes” or “mandates”. A company can still enforce important aspects of workplace environment like prohibiting sexual harassment, dealing with workplace violence, sabotage or abusing activity. Below is a number of cases that will help to understand the NLRB standing on the challenging issues that Social Media has created, since these technology tools did not exist in 1935 at the time the major part of today’s labor law was enacted. Cases related to social media have been taking place for quite a while, but in a famous “Facebook firing” case of NLRB v. American Medical Response of Connecticut Inc., NLRB No. 34-CA-12576, the Board sided with an employee for the first time. Dawnmarie Souza was an employee of American Medical Response. She requested union representation, when asked by her supervisor to prepare an incident report concerning a customer complaint about her work. Refusing union representation was the biggest misstep at this point and justified what and how the employee said regarding the supervisor on Facebook at a later time. American Medical Response suspended and later fired Ms. Souza for violating the company’s policies with regards to heated discussion on Facebook that followed the incident. Although her supervisor was referred as “scumbag” and “dick”, which violated American Medical Response’s Internet policy of that time, NLRB concluded that the discussion must be viewed as “protected, concerted activity”, since it was about working conditions. Also, there was no assault or battery involved. In NLRB v. American Medical Response the parties did not go to court and the case was settled where American Medical Response agreed to revise its policies and be more specific in restricting online activities, rather than provide a blanket-type limits on what their employees can discuss on Facebook or Twitter. Granting union representation to its employees was another part of the settlement as well. Lastly, American Medical Response also settled with Ms. Souza as well.
In Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (Dec. 14, 2012), NLRB ruled that Hispanics United of Buffalo, a non-profit social services organization, unlawfully terminated Mariana Cole-Rivera, one its employees. This happened after she posted a Facebook message asking how her fellow co-workers felt about another caseworker’s threat to complain to the boss about their not working hard enough. The social services provider fired Ms. Cole-Riviera and four other employees, whose heated comments were perceived as violation of the organization’s harassment policies, where the caseworker who complained was treated as a victim. NLRB did not agree and saw the fired employees’ actions as protected concerted activity even though there was no clear indication the employees were contemplating group action of any kind and ordered reinstatement of employees fired over the heated discussion on Facebook. In these cases, the Board explained that an activity is concerted when an employee acts “with or on the authority of other employees, and not solely by and on behalf of the employee himself.”
One would think that after decisions like this employees are given carte blanche and can post and discuss anything about their employers and their products in whatever way they find it appropriate. There is a fine line, however. It is demonstrated in Karl Knauz Motors, Inc. d/b/a/ Knauz BMW and Robert Becker, No 13-CA-046452. NLRB was considering two sub-cases at this time, when Robert Becker, a BMW salesman made Facebook posts on two occasions. First one involved a Land Rover accident on a dealership lot across the street, where the dealership was also part or Knauz Group. The second posting was related to a company event about which Mr. Becker and other salesmen were not happy, particularly about the “cheap” catering part, where hot dogs and cookies along with bottles of water were served to high-end clientele. The employees were concerned about how it would poorly reflect on their sales and, of course, commission. Mr. Becker was fired when Knauz Group management learned about the posts, which portrayed the company in negative light. NLRB ruled in favor of the company. To understand the reason, one needs to become familiar with two important tests.
When applying traditional rules to Social Media communication, NLRB often invokes two important cases - Atlantic Steel, 245 NLRB 814, 816-817 (1979) and NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953) in order to validate the protection of the online activity of an employee. The first test is normally applied to an employee who made public outbursts against a supervisor. The second test becomes relevant when and employer or its products are subject of disparaging comments to outside or third parties. While Mr. Becker’s second posting on Facebook was considered protected concerted activity, the posting about Land Rover accident was neither protected nor concerted activity subject to protection under the Act, which Kaiser Group asserted was actual reason for Becker’s termination. However, the Administrative Law Judge found that the employer’s policy was too broad and could discourage protected activity because it prohibited employees from giving “unauthorized interviews ”to third parties and stated (in a separate clause) that “no one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” Despite being content with the ruling, Kaiser Group voiced their concerns about being more confused regarding NLRB social media guidelines after the decision was made.
“Personal Venting” is not considered protected or concerted activity and thus, there is no justification for using Social Media for this purposes. JT's Porch Saloon & Eatery Ltd., NRLB Div. of Adv. No. 13-CA-46689 (July 7, 2011) clearly demonstrates the case. While not being happy with tip distribution policy and not having had any raise in five year, a bartender in suburban Chicago restaurant started calling his customers “rednecks”, and expressed his “hope that they would choke on the glass as they drove home drunk”. This had nothing to do with a discussion aimed at improving working conditions or wages - thus no protection was available for these postings under the Act. Colleagues did not support his actions and he had not approached the management to resolve the issue either.
Many people have perception that NLRB is an organization backed by unions. The ruling in MRC Carpenters Union Local 2012 (Forcine Concrete & Construction Co., Inc.), 358 NLRB No. 39 (May 15, 2012) serves as an example of a very relevant case for this perception.
Four union employees entered a construction site where non-unionized workers were performing their jobs. Without introducing themselves and impersonating inspectors they started interrogating those on-site. The process was evidently coercive, as immigrant non-unionized workers tried to avoid the “inspection”, but were forced to carry on. The “inspectors” demanded ID’s and inquired about immigration status - the weak spot of many immigrant non-unionized workers. One of the union members was recording the process all the time. The video was later sent to immigration authorities and was posted on YouTube in an edited format.
In its ruling Administrative Law Judge stated that the union’s interrogations did not engage in unfair labor practices affecting commerce within meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act. The Board confirmed the decision made by the Administrative Law Judge. The fact that non-unionized employees were threatened, were recorded without permission and that the video was posted online for third parties to view was somehow not relevant. It would be relevant to mention, however, that there is a number of voices in right to work states that see NRRB’s new rules constitute a way to increase the Board’s influence. This is because unions, the main power behind NLRB, have dwindled in numbers and have recently lost a number of important battles after the economic crisis of 2008. There is close scrutiny when NLRB considers each case. This can be observed when comparing two complaints filed with the Board. In Rock Creek Veterinary Hospital, NLRB No 36-CA-10824 and Build.com, NLRB 20-CA-035444 each company fined one of their employees for negative postings on Facebook. In the case with veterinary hospital, the posting resulted in responses from three co-workers who agreed with her and expressed their reservations about the situation in a follow-up discussion. NLRB ruled the firing to be unlawful. In the home improvement online retailer case the scenario was quite similar, however this time NLRB decided to be on be on the employer’s side, because the discharged party “had no particular audience in mind when she made that post, the post contained no language suggesting that she sought to initiate or induce co-workers to engage in group action, and the post did not grow out of a prior discussion about terms and conditions of employment with her co-workers.” NLRB deemed the posting “personal gripes”, which do not fall under the Act protection in this case. At the same time, the company had to re-write its policy and take limitations that were violating the Act off the list. This included an agreement to post a notice at the workplace for 60 days stating that employees have the right to post comments about terms and conditions of employment on their social media pages, and that they will not be terminated or otherwise punished for such conduct. On many occasions NLRB would intervene to adjust or invalidate a company’s social media policy. The reason it happens is because they are too broad and in reality employees are limited in what they can discuss online. Section 7 of the NLRA (29 U.S.C. § 157) is what the Board wants to be free from restrictions, no matter if the “cafeteria” is online or offline. NLRB uses two cases to judge on how viable a company’s social media policy is. An employer violates Section 8(a)(1) through the maintenance of a work rule if that rule “would reasonably tend to chill employees in the exercise of their Section 7 rights, referring to Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). The Board also uses a two- step inquiry to determine if a work rule would have such an effect. Lutheran Heritage Village–Livonia, 343 NLRB 646, 647 (2004). First, a rule is clearly unlawful if it explicitly restricts Section 7 protected activities. If the rule does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that:(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. As it can be seen, most complaints regarding social media filed with NLRB are centered around two categories: employees that challenge the firing from a company and employees that dispute their employer’s social media policies. It is hard to strike the right balance, when a company institutes social media policy. The nature of online communication suggests that the employees’ “web-cafeteria” is a place much more exposed to outside public than traditional cafeteria is. Thus, all discussions and activity in social networks and other online platforms is considered to be under constant magnifying loupe. In general, it is challenging to place clear limits in social media without crossing the legal line because there is a always an amount of uncertainty, even when reviewing the NLRB rules and putting the company policies in respective accordance. Also, the NLRB’s rulings are subject to review by federal appellate courts, which have the final say on whether a particular social media policy is legal or not. Interestingly enough, the new policies only apply to private employers and NLRB itself, being a federal agency, is not subject to its own rules. The statute does not provide remedy for managers and supervisors either, since it is aimed at employees that potentially will organize and seek to improve their working conditions. At the same time, there is a bit of uncertainty about the recess appointment made by President Obama in January of 2012, since they deemed unconstitutional by the U.S. Court of Appeals for the D.C. Circuit when Noel Canning– a Washington based canning and bottling employer that was not happy with the ruling on when Teamsters Local 760 filed a complaint and NLRA (expectedly) sided with the union. The delicate part of the process is that this decision undermines credibility of all NLRB rulings after January 4th of 2012 after President Obama appointed three new members to the Board. The Solicitor General has just filed a petition for certiorari, asking the Supreme Court to review the D.C. Circuit’s decision. The Supreme Court will most probably not announce its decision as to whether to grant review until after the summer recess.