Why Does the NLRB Get Involved in Non-Union Workplaces?

Although the National Labor Relations Board spends much of its time dealing with union vs. management issues, recent publicity about its rulings on social media in the workplace have reminded us that its jurisdiction extends into non-union environments. This post explains the source and contours of that jurisdiction.

The NLRB exercises jurisdiction over all private employers who participate in a minimum level of interstate commerce, except those who employ only agricultural laborers. The Board's Jurisdictional Standards page explains the standards. The National Labor Relations Act excludes all government employees from the Board's jurisdiction.

Section 7 of the NLRA (29 U.S.C. section 157) protects employees' right "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."The right extends to those who are not union members and to workplaces with no union presence. To be protected under Section 7, the activity (1) must involve two or more employees acting together or a single employee acting on behalf of others (2) must benefit employees as a group and not just amount to a personal grievance, and (3) must not be malicious, reckless or otherwise unlawful. The NLRB finds the right important enough that it launched a website in June 2012 that is specifically devoted to the protection of concerted activity.

Here are some of the ways in which Section 7 has been held to protect employees from adverse action by their employers:

Social Media. Several decisions have taken employers to task for disciplining or firing employees based on comments posted on Facebook and other social media. The Board's General Counsel issued a report in May 2012 that distilled the state of the law in this area. The most recent Board decision on the subject found that a Chicago car dealer did not violate Section 7 rights when it fired a sales person for posting photos on his Facebook page because the action was not concerted. Karl Knauz Motors, Inc., Case 13–CA–046452 (Sep. 28, 2012).

Wage Discussions. Section 7 gives employees the right to discuss their wages and other terms and conditions of employment. Confidentiality policies that prohibit employees from disclosing such information are not permitted. For an example of a confidentiality policy that drew NLRB enforcement action, see Northeastern Land Services, Ltd., 560 F.3d 36 (1st Cir. (2009).

Civility Policies. A policy that bars employees from treating each other in an uncivil manner may chill Section 7 rights. For example, in KSL Claremont Resort, Inc., 344 N.L.R.B. No. 105 (2005), the Board held that a policy prohibiting "negative conversations" about associates or managers was unlawful, because employees could reasonably construe the policy to bar them from discussing with their coworkers complaints about their managers that affect working conditions, thereby causing employees to refrain from engaging in protected activities.

The Employee-Facebook Privilege

American Medical Response of Connecticut earned notoriety when the NLRB charged it with an unfair labor practice for having fired an employee who posted negative remarks about her supervisor on her personal Facebook page in October 2010. She had posted the remarks after being denied union representation for an interaction with her supervisor. The posting drew supportive responses from co-workers, which prompted the employee to post additional negative remarks. The NLRB charged that the Facebook postings were protected concerted activity under section 7 of the National Labor Relations Act (29 U.S.C. sec. 157). Concerted activity is protected in both union and nonunion environments. The company settled the case on February 7, 2011, by agreeing to revise its social media policy to allow communications protected by section 7, and to post a notice to its employees advising them of their right to engage in concerted activity. All employers should review their policies and practices to make sure that they do not discipline employees for communications on social media that may be protected by section 7.

The NLRB action does not mean that employers are prohibited from restricting access to social media in the workplace. They have a legitimate interest in preventing distractions and the infection of the workplace with inappropriate content. Indeed, employers who do not limit inappropriate use of social media may themselves face liability to third parties. In Yath v. Fairview Cedar Ridge Clinic, 767 N.W.2d 34 (Minn Ct. App. 2009), a patient sued the clinic after her personal medical information appeared on Myspace.com. The fact that the clinic had blocked access to Myspace from its computers helped in its defense. Even so, the Minnesota court allowed one cause of action to proceed to trial. A New Jersey employer was denied summary judgment against a claim by the wife of an employee who claimed that her husband posted naked pictures of their daughter from a computer at work. Doe v. XYC Corp., 887 A.2d 1156 (N.J.Super.A.D. 2005).

UPDATE (September 29, 2011)

In July 2011, the NLRB Office of the General Counsel issued three advice memos that discuss the application of the concerted activity concept to social media:

• JT's Porch Saloon & Eatery, Ltd. (Case 13-CA-46689). A bar did not violate the NLRA when it fired a bartender for responding to a Facebook inquiry from his step-sister with a rant about the bar's policy that waitresses do not share tips with bartenders, his lack of a raise, and the bar's customers. He did not engage in concerted activity because there was no evidence of a discussion with his fellow employees.
• Martin House (Case 34-CA-12950). A residential facility for homeless people did not violate the NLRA when it fired a recovery specialist for making fun of clients on Facebook. She was not a Facebook friend to any of her co-workers. She was merely communicating with her personal friends about what was happening on her shift.
• Wal-Mart (Case 17-CA-25030). Wal-Mart did not violate the NLRA when it fired a customer service employee for complaining on Facebook that there was tyranny at his store and that his assistant manager was a "super mega puta." Although most of the employee's Facebook friends were coworkers, he was just expressing an individual gripe. He did not call for group action. None of the coworkers who responded referred to group action.

UPDATE (September 30, 2011)

On August 18, 2011, the NLRB Office of the General Counsel published a report on recent social media cases, which explores the legal principles in greater depth. Read the report.

UPDATE (October 4, 2011)

On September 28, 2011, an administrative law judge recommended dismissal of a complaint that the owner of a BMW car dealership violated a salesperson's rights when it fired him for posting negative comments on his Facebook page. Karl Knauz Motors, Inc., Case No. 13-CA-46452. Some negative comments were directed at what the complainant considered a shoddy sales event at the BMW dealership where he worked. He believed the event would reduce commissions for the sales force because it presented a poor image. The other comments made fun of an accident at an adjacent Land Rover dealership, also owned by his employer. The comments about the BMW sales event were protected concerted activities, but the comments about the accident were not. Because the evidence established that the employee was fired because of the comments about the accident, there was no violation.