Recently, the NLRB has issued a number of decisions addressing social media in the workplace as it pertains to employers.  Last month, however, an NLRB judge rendered a decision addressing a Union’s potential liability and responsibilities for social media activities on its own Facebook page.  Interestingly, the judge addressed the posts and comments of the Union’s members, rather than the Union itself.  As a result, questions remain regarding whether this analysis applies only to a union, or whether it will apply similarly to an employer and the acts of its employees.

In Amalgamated Transit Union, Local Union No. 1433, AFL-CIO, Case 28-CB-78377, JD(ATL)-33-12 (ALJ Op. Nov. 28, 2012), the Union, which represents a bargaining unit comprised of bus operators, was charged with violating the National Labor Relations Act (“NLRA”) for the threatening statements made by the Union’s members on the Union’s Facebook page.  The government alleged the Union had a duty to disavow any threatening statements, and because it failed to do so, its failure amounted to a restraint on the employees’ Section 7 right not to engage in union activities, in this case, a strike.

Regarding the threats, individual Union members threatened employees with less favorable union representation and violence if they refused to participate in the labor strike.  For instance, on the first day of the strike, a Union member posted:

  • “THINKING of crossing the line.  THINK AGAIN!”
  • “THINK about the future.  When WE return, YOU will be gone.  It is a fact that in union strikes across the nation that within six months after the strike ends that 90% of the workers that crossed the line are no longer employed there.”
  • “THINK that the union will protect you.  They may have to represent you, but will they give it 100%.”

In response to this post, one employee commented that he suffered from an eye condition and could not afford to lose his insurance because of the strike.  In response, a Union member commented that if the employee crossed the picket line he would “lose his eyesight” from two black eyes.  On the second day of the strike, the Union’s Vice President discussed holding a picket line at the hotel where the company’s replacement employees were staying.  In response, one member commented, “[c]an we bring the Molotov cocktails this time?”

The government alleged that the Union had a duty to disavow these threats and relied on case law for the proposition that a Union is responsible for the acts of its members on a picket line when it fails to take corrective action.  Thus, the government argued, because the website is an extension of the picket line, the Union was responsible for disavowing the threats made on its Facebook page.  Failure to do so constituted a violation of the NLRA.

The judge rejected this argument and found marked differences between an actual picket line and a website.  For instance, whereas a picket line communicates a public message from a Union, a Facebook page is private.  Additionally, the judge found that hundreds of thousands of websites contain discussions that do not express the opinions of the host.  Moreover, the judge found that requiring the union to disavow the posts amounted to compelled speech and implicates the Union’s First Amendment free speech concerns regarding the right to refrain from speaking.  For these reasons, the judge found the Union had no duty to disavow the threatening posts and therefore had not violated the NLRA.

While this decision is good news for labor unions, it is unclear whether the NLRB will hold an employer to the same standards with respect to a company’s Facebook page.  Notably, the allegations against the Union did not involve any officers or agents of the union, but rather, its individual members.  Accordingly, until the NLRB decides this issue in the context of an employer’s social media page, employers must be diligent in monitoring not only the “official” posts on their social media websites, but also the contents of posts made by employees or other third parties.

On September 28, 2012, the National Labor Relations Board (“NLRB”) issued its decision in Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012).  The NLRB affirmed an Administrative Law Judge’s findings that a car dealership did not violate the National Labor Relations Act (“Act”) after it terminated a salesperson for his posts on Facebook.   In making its decision, however, the NLRB left undecided the arguably larger question of distinguishing social media posts that the Act protects from those it does not.  Unfortunately, that question is now left for employers who must carefully evaluate an employee’s social media activity before taking disciplinary action.

Last September, an Administrative Law Judge upheld the termination of car salesman Robert Becker after he posted pictures and captions on his Facebook page mocking a car accident that occurred at his employer’s Land Rover dealership.   What made the decision interesting, however, is the fact that Becker alleged his termination was the result of another set of Facebook posts that had nothing to do with the Land Rover accident.

In one set of Facebook posts, Becker ridiculed his employer’s launch event for a new BMW automobile.  Specifically, Becker posted pictures and comments mocking the dealership’s decision to have a hot dog cart and serve cookies and chips instead of something more formal.  In the second set of Facebook posts, Becker posted pictures and made flippant remarks about a car accident that had occurred at his employer’s Land Rover dealership across the street.  Apparently, a salesperson at the dealership allowed the child of customer to get behind the wheel of a Land Rover.  The child subsequently engaged the vehicle and crashed it into a pond.     Becker posted the comments and pictures of both events at the same time.  Two days later, management called him into a meeting about the Facebook posts and subsequently terminated his employment.

Becker argued that he was terminated for the posts about the launch event, and further argued that those posts were protected under the NLRA as they related to the terms and conditions of his employment. Becker testified before the judge that he believed the food served at the launch event could have negatively affected his commissions.  In contrast, the dealership asserted that it terminated Becker primarily for the Land Rover posts, and making light of a serious situation.

The judge agreed with Becker that his posts about the food served at the launch event were protected activities under the Act.  Specifically, the judge found the food offerings at the event could have had an adverse effect on his compensation or the ratings given to him by the dealership’s clientele.  The judge admitted this was unlikely, but nevertheless, found that the food decisions could affect Becker’s employment relationship.  As a result, the judge found Becker’s posts about the food were protected, and as such, Becker could not be terminated for those posts.

The judge also found, however, that the Act did not protect the posts about the Land Rover accident, as they did not relate to the terms or conditions of Becker’s employment.   Moreover, the judge found the testimony of the dealership’s management to be more credible, and because the dealership asserted that it terminated Becker solely for the Land Rover posts, the decision to terminate Becker for that reason did not violate the Act.  Therefore, the judge upheld the termination.

In affirming the judge’s decision, the NLRB found it unnecessary to address whether the posts about the food at the sales event were protected.  In doing so, the Board left unanswered the question regarding the types of activities relate to the terms and conditions of employment, and as a result, are protected by the Act.

What this means to you

Becker’s posts mocked the dealership’s decision about the food served at an event.  Unlike an employee who complains about their pay or working conditions, Becker’s activity was not expressly related to the terms or conditions of his employment.  Accordingly, it will be vital for employers going forward to carefully consider whether an employee’s social media activities might relate to the terms and conditions of his or her employment and how the basis for the disciplinary decision is articulated when the conduct at issue includes activity that is and is not protected by the Act.

The acting general counsel for the National Labor Relations Board (NLRB), Lafe Solomon, has addressed a number of workplace topics, including social media policies, at-will employment statements and class action waivers in arbitration agreements. In addition, a new NLRB webpage describes the rights of employees, even if they are not in a union. Both of these activities demonstrate that the labor watchdogs are not taking a summer vacation – and neither should diligent employers. Social Media Policies On June 11, 2012, Solomon said approximately 100 social media-related unfair labor practice charges were pending at the NLRB. This should not be surprising news for anyone following the agency’s activity over the past year. Since August 2011, the NLRB has issued three guidance memoranda on the issue. In these memoranda, the acting general counsel explains what social media actions are protected by the National Labor Relations Act (the Act) and what types of employer policies on social media violate the Act. Notably, Solomon pointed out that his most recent memorandum (issued May 30, 2012) contained the full text of an approved social media policy and provided guidance for employers struggling to develop guidelines that would withstand a challenge under the Act. At-Will Employment Statements Solomon also talked about employers’ use of at-will disclaimers in employee handbooks. Specifically, he discussed a controversial complaint issued earlier this year by the NLRB in Phoenix, Ariz. The complaint alleged that a number of an employer’s policies were unlawful, including an at-will statement similar to those used by employers nationwide. Solomon explained that he did not approve of this complaint before it was issued, but rather became aware of it later. He stated that, in his view, an employer would not violate the Act if the employer simply told its employees that they were employed at-will. He suggested that it would also not be unlawful for an employer to tell its employees that the at-will nature of their employment cannot be changed by an oral statement alone. Solomon explained that this particular employer’s at-will statement went too far because it implied that unionization would not change an employee’s at-will status. Many employers agree to “just cause” provisions in collective bargaining agreements with unions, which alter the at-will status of employment. For this reason, Solomon said, the employer at issue in the Arizona case was in potential violation of the Act. Solomon said the case had been settled, so the NLRB’s theory would not be further tested at this point. Class Action Waivers Finally, Solomon addressed the recent conflict between the NLRB’s decision in D.R. Horton, which held that an employer’s arbitration agreement violates the Act when it requires employees to waive the right to arbitrate as a class, and the U.S. Supreme Court’s decision in AT&T Mobility v. Concepcion, where the court held that the Federal Arbitration Act authorizes precisely such waivers. Solomon stated that he saw no conflict between the decisions because, in his view, the Act pre-empts the Federal Arbitration Act. He did acknowledge, however, that most federal courts considering the issue disagreed, holding instead that Concepcion overrode D.R. Horton. What This Means to You Recent NLRB statements regarding employers’ social media policies, at-will employment disclaimers and class action waivers should serve as a reminder to employers who have not updated their policies in recent years that such updates may now be warranted. At a minimum, employers are encouraged to review their social media policies and ensure that they are narrowly tailored to the employer’s business needs and corporate culture. At-will statements must not be overly broad or imply that unionization would be futile for employees. Other policies should also be reviewed with an eye toward employees’ rights under the Act. This way, employers may be able to avoid unfair labor practice charges alleging that the employer is impinging upon employee rights.