This document discusses how the National Labor Relations Act (NLRA) protects employees' rights to engage in protected concerted activities, even without a union. It provides examples of the NLRB finding social media posts to be protected when discussing workplace issues and conditions. However, the NLRB has also ruled that some social media posts lose protection due to inappropriate or harassing conduct. The document concludes by noting a recent NLRB decision found an employer's social media policy to be too broad in restricting protected concerted communications.

1. The Overlap of Social Media with the
National Labor Relations Act
@MikeBillok
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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 aren't in a union.”
http://www.nlrb.gov/rights-we-protect
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3. NLRB:
Protected Concerted Activity Map
http://www.nlrb.gov/concerted-activity
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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.
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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 Act
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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.”
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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.
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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 representative
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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.
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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.
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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)
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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.
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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)
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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.
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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)
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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!
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17. The Overlap of Social Media with the
National Labor Relations Act
@MikeBillok
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