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Guidance From NLRB Social Media Cases

Chapter 4: Social Media, Labor Law and the NLRB

Posted by Dawn Lomer on March 3rd, 2015

Chapter 1: Corporate Social Media Policies

Chapter 2: Social Media Training in the Workplace

Chapter 3: Protected Concerted Activity

Chapter 4: Guidance from NLRB Social Media Cases

In August 2011, the US Chamber of Commerce released A Survey of Social Media Issues Before the NLRB. Each of the following five cases provides insight into how the NLRB might address social media cases in the future.

Case #1: Hispanics United of Buffalo, Inc.

Five employees were terminated for comments posted on Facebook about poor job performance. One employee had posted on Facebook that another employee said her coworkers did not help clients enough. In the Facebook post, the employee asked her coworkers how they felt about the situation. The employee who posted the comment, as well as the others who responded to it, were terminated.
The final decision in the case was that the employees were unlawfully terminated. In the explanation for the decision, the NLRB’s Acting General Counsel said:

“We decided that the Facebook discussion here was a textbook example of concerted activity, even though it transpired on a social network platform. The discussion was initiated by the one coworker in an appeal to her coworkers for assistance.

Through Facebook, she surveyed her coworkers on the issue of job performance to prepare for an anticipated meeting with the Executive Director, planned at the suggestion of another employee. The resulting conversation among coworkers about job performance and staffing level issues was therefore concerted activity.”

Case #2: American Medical Response of Connecticut

An employee was asked by her employer to prepare an incident report regarding a complaint made about the employee’s performance. The employee requested that a union representative be present when she prepared the report – which was not granted. When the employee went home, she posted a comment about her supervisor on her Facebook page – including the word ‘scumbag’. Coworkers responded to the comment, supporting the employee, but also sharing negative things about their supervisor. The employee was terminated for violating the company’s Internet policies.

It was decided by the NLRB’s Acting General Counsel that the employee engaged in protected concerted activity because the employee discussed the actions of her supervisor on her Facebook page and the ‘name-calling’ wasn’t accompanied by threats. They also found that the employee’s actions were instigated by the employer’s unlawful actions, denying the employee the right to having a union representative. The NLRB’s Acting General Counsel also questioned the company’s Internet and blogging policy, which they concluded violated Section 8 (a) (1) because:

“It would prohibit an employee from engaging in protected activity; for example, an employee could not post a picture of employees carrying a picket sign depicting the company’s name, or wear a t-shirt portraying the company’s logo in connection with a protest involving terms and conditions of employment.”

Case #3: Karl Knauz Motors

The Knauz Motors case involves two different events involving the same employee. Robert Becker, a salesperson for Knauz Motors (BMW dealership) posted photos and comments about the choice of food and beverages served at company event for the launch of a new type of car. The employee was asked to take the photos down, and did so promptly. After that incident, the employee posted photos regarding an accident that happened on the car lot. A car had been driven into a pond by the 13-year-old son of a potential customer at the Knauz Land Rover dealership next door to the BMW one where Becker worked.

Becker was terminated, but his employer made it clear that it wasn’t for the photos and comments about the sales event, but for the photo about the accident that happened on the lot at the Land Rover dealership. The actions pertaining to the sales event were deemed protected according to the Administrative Law Judge (ALJ), since Becker felt that the food being given out at the event was sub-par for a BMW dealership and could be looked down upon by customers. The posting of the photo was ruled unprotected because it didn’t promote any employee discussion or raise concerns about working conditions.

Another part of the case was a ruling that the employer’s policy regarding social media was too broad. The ALJ concluded that the following conduct policies in the handbook were overly broad:

  1. Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.
  2. Unauthorized Interviews: As a means of protecting yourself and the Dealership, no unauthorized interviews are permitted to be conducted by individuals representing themselves as attorneys, peace officers, investigators, reporters, or someone who wants to “ask a few questions.” If you are asked questions about the Dealership or its current or former employee, you are to refer that individual(s) to your supervisor. A decision will then be made as to whether that individual may conduct any interview and they will be introduced to you by your supervisor with a reason for the questioning. Similarly, if you are aware that an unauthorized interview is occurring at the Dealership, immediately notify the General Manager or the President.
  3. Outside Inquiries Concerning Employees: All inquiries concerning employees from outside sources should be directed to the Human Resource Department. No information should be given regarding any employee by any other employee or manager to an outside source.

The ALJ objected to the breadth of these policies, commenting that if employees complied with the dictates of these restrictions they would not be able to discuss their working conditions with union representatives, lawyers, or board agents.

Case #4: Wal-Mart

A Wal-Mart employee was fired for making profane comments about a store manager on his personal Facebook page. A coworker had handed the manager a copy of the comments. Some of the comments included:
“Wuck Falmart! I swear if this tyranny doesn’t end in this store they are about to get a wakeup call because lots are about to quit.” And “You have no clue … [Assistant Manager] is being a super mega puta! Its retarded I get chewed out cuz we got people putting stuff in the wrong spot and then the customer wanting it for that price … that’s false advertisement if you don’t sell it for that price … I’m talking to [Store manager] about this shit cuz if she don’t change walmart can kiss my royal white ass.”

It was ruled that the comments were considered griping, which isn’t a protected activity. This means that the employer was legally allowed to fire the employee. In the advice memo regarding the case, the NLRB wrote:
“Here, we conclude that the Charging Party’s Facebook postings were an expression of an individual gripe. They contain no language suggesting the Charging Party sought to initiate or induce coworkers to engage in group action; rather they express only his frustration regarding his individual dispute with the Assistant Manager over mispriced or misplaced sale items. Moreover, none of the coworkers’ Facebook responses indicate that they otherwise interpreted the Charging Party’s postings.”

Case #5: Sodexo

Sodexo came under fire for having an overly restrictive social media policy, which said:

“It is the policy of the Company that, in releasing information with corporate implications to print and broadcast media, we must ‘speak with one voice.’ Statements from and concerning the Company to news media must be coordinated, approved and released through a central corporate source. Do not make statements or comments to the media. If you are asked by the media to speak or comment on any subject, contact your manager or Corporate Communications immediately.”

According to the Chamber of Commerce:

“The charge in Sodexo alleges that the employer, through its employee handbook, maintained rules governing employee conduct that chills section 7 rights, specifically included policies barring statements or comments to the media as well as a discriminatory bulletin board posting policy.”

Sodexo has since issued a new policy that doesn’t violate employee rights.

Dawn Lomer
Dawn Lomer

Manager of Communications

Dawn Lomer is the Manager of Communications at i-Sight Software and a Certified Fraud Examiner (CFE). She writes about topics related to workplace investigations, ethics and compliance, data security and e-discovery, and hosts i-Sight webinars.

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