The Overlap of Social Media with the National Labor Relations Act- Michael Billok


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  • This is a major theme with the NLRB now. One of the Regional Directors said something to this effect at the September NYSBA L&E Section Meeting. This is the Board’s way of remaining relevant – by policing non-union workplaces, it has a huge new playing field.
  • Note to Presenters –Click on the hyperlink on the bottom and it will take you to this NLRB web page. Use the webpage in your presentation – click on some of the “pins” on the map to show how it works.
  • Key point: it’s unlikely that the employers in these cases had the NLRA on their radar when they acted; there was no organizing activity, no union involved
  • The Overlap of Social Media with the National Labor Relations Act- Michael Billok

    1. 1. The Overlap of Social Media with the National Labor Relations Act @MikeBillok1
    2. 2. National Labor Relations Board: Not Just About Unions Anymore “The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they arent in a union.”
    3. 3. NLRB: Protected Concerted Activity Map
    4. 4. Protected Concerted Activity in Non-Union Settings • The publicized cases on the NLRB’s new interactive map do not involve unionized employers, or efforts to unionize! • All involved employees engaging in protected, concerted activity by talking (or attempting to talk) with each other, their employer, or to the public to complain about alleged mistreatment.4
    5. 5. National Labor Relations Act: A Refresher  Covers private sector employers  Provides employees the right to unionize and right to refrain from unionizing  Provides employees the right to engage in, or refrain from engaging in, other “protected concerted activity. . . for mutual aid or protection”  Prohibits certain unfair labor practices  Establishes NLRB to administer & enforce the Act5
    6. 6. NLRA: A Refresher Protected Activity – NLRA § 7 “Employees shall have the right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”6
    7. 7. NLRA: A Refresher Protected Activity – NLRA § 7 “Other concerted activities for the purpose of… mutual aid and protection” • Discuss and complain about their individual circumstances including wages, hours, working condition with other employees. • Disclose, discuss and complain about those matters to labor organizations, outside agencies (not just the Board) and to the public.7
    8. 8. NLRA: A Refresher Employer Unfair Labor Practices – NLRA § 8(a) 8(a)(1): Interfere or coerce employees in exercise of § 7 rights 8(a)(2): Dominate, interfere with, or financially support union 8(a)(3): Discriminate or retaliate for engaging in protected activity 8(a)(4): Retaliate for participating in a Board proceeding 8(a)(5): Refusing to bargain with a certified union representative8
    9. 9. NLRA: A Refresher An employer rule or policy violates Section 8(a)(1) of the Act, even if it does not explicitly restrict Section 7 activity if: • Employees would reasonably construe the language to prohibit Section 7 activity; OR • The rule was promulgated in response to union activity; OR • The rule has been applied to restrict the exercise of Section 7 rights. Any ambiguity in a policy is construed against the employer.9
    10. 10. NLRB: Not Just About Unions Anymore • Historically, NLRB focused on policing the employment relationship in the context of organizing efforts and unionized workplaces. • New focus is on: – The right of all employees, particularly non-union employees, to engage in protected, concerted activities. – Employer policies that can be reasonably construed to chill those rights.10
    11. 11. Cases• Five employees were terminated for engaging in a discussion on Facebook regarding job performance and staffing level issues, after one of the employees requested assistance in preparing for an anticipated meeting with management about these topics. – AGC found this discussion was “textbook” concerted activity. – Was protected activity because it related to terms and conditions of employment. – Although the posts contained some swearing and sarcastic comments, the content of the posts did not rise to the level of “opprobrious behavior” that might lose its protected status. (cont’d)11
    12. 12. Cases • An employee was unlawfully terminated for posting negative remarks on Facebook about her supervisor, including calling him “a scumbag”. – Comments were made after supervisor directed employee to prepare an incident report over a customer complaint about her and then denied her request for union representation while preparing the report. • An employee was unlawfully terminated when his Facebook post referred to the owner of the company as “such an asshole”, when the comment was made in relation to concerns over the employer’s tax withholding practices.12
    13. 13. Cases• Newspaper company lawfully terminated a newspaper reporter who made inappropriate and unprofessional tweets – not related to his terms and conditions of employment – to a work-related Twitter account.• Restaurant lawfully terminated a bartender who posted a message on his Facebook page that degraded the employer’s tipping policy in response to a question from a non-employee. – Also, bartender called the employer’s customers rednecks and said he hoped they choked on glass while driving home drunk. (cont’d)13
    14. 14. Cases• Medical transportation employer lawfully terminated an employee who posted messages on the Facebook page of a U.S. Senator disparaging the services her employer provided. – Employee also disclosed confidential information related to a service call she had made.• Retail store lawfully disciplined an employee for profane Facebook comments claiming “tyrannical” store management.– Although several coworkers expressed some emotional support, the AGC found that the employee’s comments constituted an individual gripe, not concerted activity.14
    15. 15. Cases• An employee salesman was lawfully terminated for posting on Facebook photographs and sarcastic commentary on a test drive gone awry.• But AGC’s position was that firing employee for posts about the less than luxurious food and drink served by his employer at a kickoff sales event was unlawful. – AGC viewed comments as relating to concerns shared with co- workers about impact of “cheap” car dealer on commissions. – AGC found that conduct was concerted because employee was vocalizing the sentiments of his co-workers about commissions which had previously been expressed at a meeting with salespersons to discuss planning for the event. (cont’d)15
    16. 16. Latest Word on Social Media Policies • Costco Wholesale Corp., 358 NLRB No. 106 (September 7, 2012) – First Board decision on a Social Media Policy. – Policy prohibited employees from electronically posting communications that “damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement.” – Unlawful: Wording of the policy “clearly encompasses concerted communications” protesting Costco’s treatment of its employees. • More to come!16
    17. 17. The Overlap of Social Media with the National Labor Relations Act @MikeBillok17