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NLRB Develops Framework to Address Social Media in Collective Bargaining and Union Organizing

June 20, 2011

By Amy L. Rosenberger, Esquire

With the exploding popularity of social media, and the increasing use of sites like Facebook for union organizing and collective bargaining campaigns, it is perhaps inevitable that cases involving employee posts and comments on such sites will find their way to the National Labor Relations Board. The NLRB issued a complaint last year against an employer who dismissed an employee for work-related Facebook comments. Since the widely-publicized settlement of that case in February (reported in our March 2011 e-newsletter), the Board has issued complaints in several similar cases involving work-related comments made on Facebook and Twitter.  

To address this trend, in April 2011 the National Labor Relations Board’s General Counsel instructed regional NLRB offices to seek advice from the Board’s Division of Advice on all charges involving employee use of social media, signaling an effort to develop a consistent approach to these cases, since there is presently little case precedent from the Board involving social media. Social media may seem to present new and complex challenges for employees and employers alike. However, a review of recent decisions involving employee use of social media, whether in the context of alleged employee misconduct or employer interference in employee protected activity, suggests that they key to evaluating these claims will be to apply established rules which have been applied to more “traditional” means of communication. 

A recent NLRB ruling from February 2011 provides a good example of the NLRB's "what's old is new" framework for evaluating social media cases. In Hawaii Tribune Herald, 356 NLRB No. 63 (2011), the Board applied long-established rules regarding the extent to which employee communications are protected in a case involving blog posts made by a news reporter about his employer after he allegedly had been unlawfully discharged for engaging in his duties as a union steward. His posts criticized the newspaper’s apparent refusal to support its own staff and failure to report accurately news of interest to the community. The employer claimed that these post-discharge comments improperly disparaged the employer, citing a 1953 U.S. Supreme Court holding that disparagement of the employer’s product, without a connection to a labor dispute, is not protected activity under the National Labor Relations Act (NLRA). Based upon this conduct, the employer argued that the reporter was ineligible for reinstatement or back pay.  

The Board disagreed, recognizing that “employees who are unlawfully fired...often say unkind things about their former employers,” and “[e]mployers who break the law should not be permitted to escape fully remedying the effects of their unlawful actions based on the victims’ natural human reactions to the unlawful acts.” Applying the rule adopted in 1969, in O’Daniel Oldsmobile, Inc., 179 NLRB 398 (1969), the Board held that an unlawfully discharged employee may be reinstated in so long as the conduct in question is not “so flagrant as to render the employee unfit for further service....”

It remains to be seen what will come of the Board’s apparent attempt to develop a consistent approach to cases involving social media. For the time being, however, it appears that the best approach for unions, employees and their advocates is to apply existing rules regarding employee rights under the NLRA. As always, if you have questions or concerns on how to apply the "old rules" in the new legal landscape, contact a labor and employment attorney at Willig, Williams & Davidson.

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