The last six weeks or so have brought us a flood of NLRB General Counsel Advice Memoranda addressing whether an employee’s social media activity is protected concerted activity for which he or she may not be disciplined. In his excellent Ohio Employers Law Blog, John Hyman discusses four of them and suggests that the NLRB may be settling in on, dare I say, a more reasoned position when it comes to these kinds of cases. In three of those cases, the General Counsel’s Office recommended dismissal because the employee at issue was merely venting an individual gripe and was not seeking to incite group action. In the fourth, the General Counsel’s office concluded that the employee was rightfully terminated after refusing to delete a comment accusing the employer of fraudulent accounting practices after it was demonstrated that her allegations were false.
On January 3rd, the General Counsel’s Office issued two new Advice Memoranda relating to social media issues. In Miami Jewish Health Systems, the charging party, a nurse who had been transferred from the ICU to another position, wrote an email, though Facebook, to a former co-worker who still worked at the hospital. In her email, she asked if the manager was "still there making life miserable for u guys" and if he was "still the wimp he is." In addition, he asked, "How long u gonna put up wit that?" The former co-worker apparently didn’t share the charging party’s views on the manager and reported the charging party. The General Counsel’s Office concluded that the charge should be dismissed relying again on the concept that the employee was simply airing a personal gripe and was not an effort to initiate group action.
The second Advice Memorandum, Thomson Reuters provides an opportunity to update to an earlier post of ours here where we discussed a news article on this dispute. The Advice Memorandum discusses several issues arising out of what appears to have been some fairly contentious collective bargaining. During this time period, the employer invited employees to visit its new Twitter feed and encouraged them to "join the conversation on making Reuters the best place to work." One of the employees, a journalist, wrote on her own personal Twitter feed – which did not reference her affiliation with the employer – that "one way to make this the best place to work is to deal honestly with Guild members." The next day, the journalist’s bureau chief called to "remind" her that the company’s Twitter policy prohibited tweeting about anything that would damage the employer’s reputation. Although no formal disciplinary action appears to have been taken against her, the journalist noted that from that point forward she refrained from tweeting about the employer’s Twitter feed. Nevertheless, the Board concluded that the employer’s policy and its application to this journalist violated Section 8(a)(1) of the NLRA because it would reasonably tend to chill the employees in the exercise of their Section 7 right to engage in concerted activity. The General Counsel concluded – consistent with the Board’s approach to date – that broad prohibitions against damaging the employer’s reputation, embarrassing the employer, and the like, without providing "limitations or examples" renders the policy overbroad and unlawful. In addition, the application of the policy to this particular tweet demonstrated to the General Counsel’s Office the overbroad nature of the policy. Finally, the Advice Memorandum goes on to conclude that the specific application of the policy to this particular tweet also violated Section 8(a)(1), noting that the tweet about "dealing honestly" with the union was not so disloyal as to lose protection.
Perhaps I am starting to become numb to the NLRB’s treatment of these issues, but there is nothing monumental about any of the General Counsel’s treatment of the social media issues arising out of any of these cases. Though all of us on the employer side of the equation certainly wish that Board would be more sensitive to their concerns about employee social media use, we at least may be starting to see the next best alternative, consistency in approach.