The Writing on the Facebook Wall: NLRB finds Facebook Comments in Response to a Co-Worker’s Criticisms of Job Performance was Protected Activity

In Hispanics United of Buffalo, Inc., the Issue before the Board was whether the employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) when it discharged five employees for “Facebook comments they wrote in response to a coworker’s criticisms of their job performance.”  The Board ultimately held that the postings constituted protected activity and the terminations were improper.

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Overruling 50-year Precedent? The NLRB Will Check “Yes” in That Box

In 1962, the NLRB’s decision in Bethlehem Steel held that an employer’s dues checkoff obligation expires with the expiration of the CBA.  On December 12, 2012, fifty years later, the Board found that the reasoning behind Bethlehem Steel was lacking and found “compelling statutory and policy reasons to abandon the Bethlehem Steel rule”.  In abandoning the Bethlehem Steel rule, the Board’s recent opinion in WKYC-TV held that “like most other terms and conditions of employment, an employer’s obligation to check off union dues continues after expiration of a collective-bargaining agreement that establishes such an arrangement.” 

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NLRB Issues Favorable Social Media Ruling . . . Well, Mostly Favorable

No this is not a typo, and no, you are not dreaming.  In a decision made public on Monday, the NLRB upheld an administrative law judge's finding that a car lot owner did not violate the NLRA when it terminated one its sales people for making "disloyal" social media posts.  This decision is the latest entry in the ongoing NLRB social media saga, and signifies some long awaited good news for employers.  However, employers should not start popping the champagne bottles quite yet.  The decision in Karl Knauz Motors, Inc was based in large part on the specific facts of that case.  And while the NLRB found that the employer did not violate the NLRA for terminating the employee, it did find that several of the employer's work rules were unlawful.  If nothing else, the Karl Knauz decision serves as a good reminder to employers that there is no bright line rule when it comes to employee social media use.

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NLRB Muddies the Water On Keeping Internal Investigations Confidential

In Banner Health System, the NLRB recently held that a blanket rule prohibiting employees from discussing ongoing investigations into employee misconduct violates the NLRA.  According to the Board, such a blanket rule runs afoul of Section 7 of the NLRA, which allows employees to engage in protected concerted activity, including discussing their wages, hours and working conditions.  This ruling impacts both union and non-union employers, as many employers ask employees not to discuss details about ongoing company investigations. While the Board's holding is significant, it does not mean that employers are banned from asking employees to keep conversations confidential.  Rather, an employer can still ask employees to keep conversations confidential so long as the employer has a "legitimate business justification."

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If First You Don’t Succeed: NLRB’s Third Guidance Document Finally Provides Useful Direction for Employer’s Social Media Policies

It seems that the law is always two steps behind technology. The NLRB has issued two previous guidance documents covering social media policies. Those statements focused primarily on policy provisions that were likely to violate the NLRA, and offered minimal guidance on what lawful policies may look like.  This lack of positive guidance often left employers wondering whether their social media polices would pass NLRB muster. However, on May 30, 2012 the NLRB’s Acting General Counsel issued his third guidance memo on social media, and in it provided, for the first time, an example of a social media policy that was acceptable in its entirety (the second memo identified lawful polices but none of those polices were social media policies).

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