Recent NLRB Cases Likely To Have Significant Impact on ALL Employers

Two recent cases at the National Labor Relations Board (NLRB) will likely have a significant impact on all employers, not just those with a unionized workforce. The cases also may signify that the current Board will be taking a more active role in shaping pro-labor policy. We will continue to monitor these and other developments and provide further updates as appropriate.

NLRB Hartford Regional Office:

Connecticut Company Illegally Terminated Employee Over Facebook Posting

In a groundbreaking case involving the ever-growing area of social media and the workplace, the Hartford Regional office of the NLRB filed a complaint against a Connecticut company claiming that it illegally fired an employee because of comments she posted on her personal Facebook page.

In American Med. Response of Conn., NLRB Reg. 34, No. 34-CA-12576, an employee was asked to participate in an investigation concerning a customer complaint about the employee. The employee’s request for union representation was rejected. Later that day, at home and on her personal computer, the employee posted negative comments about her supervisor and the employer on her Facebook page. Shortly thereafter, the employee was suspended and terminated from her employment.

The employee and the NLRB contend that the termination was due to the employee’s Facebook postings, and that these postings were “protected concerted activity” under Section 8(a)(1) of the National Labor Relations Act. The NLRB also contends that the employer’s internet policies contain unlawful provisions, including prohibitions against: (1) “making disparaging, discriminatory, or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors” and (2) depicting the company in any way over the internet without the permission of the company. The employer argued that it terminated the employee due to performance related issues. The case is scheduled for a hearing in early 2011.

While it has long been the case that speech between coworkers involving workplace issues is protected, the NLRB is seeking to apply this principle to social media, where dissemination of such speech can reach an almost limitless audience. The Region’s position is that discussions using social media merit the same protection as face-to-face conversations between coworkers “in front of the company watercooler.”

NLRB Invites Legal Briefs in Case Involving Non-Solicitation and Distribution Policies

In another case, the NLRB has invited interested parties to file legal briefs on the issue of whether an employer violates the NLRA by denying union access to the employer’s property when other individuals or organizations are permitted to do so for fundraising or solicitation activities.

In Roundy’s, Inc., 356 N.L.R.B. No. 27 (2010), a grocery store operator prohibited a local union from engaging in handbilling in front of its stores. The union was seeking to protest the building and remodeling of the employer’s stores with nonunion contractors.

The NLRB found that the employer did not have a sufficient property interest in 23 of its 26 stores to exclude the nonemployee union handbillers. In the remaining three stores, the NLRB found that although the employer did have a sufficient property interest to prohibit handbilling, it allowed nonunion organizations and individuals to solicit and distribute literature. This raises the question of whether the employer was discriminating against the union.

The NLRB has declined to make a decision on the remaining three stores until it receives the briefs from interested parties described above. In requesting briefs on this issue, the NLRB is also seeking comments on how the principles of discrimination and nonemployee access to employer property apply in the electronic communications context. The Bush-era NLRB issued what is generally regarded as a pro-employer decision in a case involving union solicitation from an employee using an employer’s e-mail system (see Register Guard, 351 N.L.R.B. 1110 (2007), enf. denied in part, 571 F.3d 53 (D.C. Cir. 2009)). The current NLRB’s invitation could be an indication that it seeks to revisit or overturn parts of the Register Guard case.

Employers who have policies restricting employee use of social media or the use of employer-owned communications systems should be mindful of these cases and related developments. The NLRB is likely to decide whether and to what extent those policies are valid under the NLRA. Please contact any member of the Carmody & Torrance LLP Labor & Employment Practice Group for more information.