The NLRB Pushes Protections for Social Media Comments to the “Outer-Bounds” of the NLRA

Thomas J. Szymanski

Enacted in 1935, the National Labor Relations Act (“NLRA”) was designed, among other things, to protect the rights of employees and employers, including protecting an employee’s right to engage in protected concerted activity in the workplace, such as complaining to other employees about her manager or terms and conditions of employment, without fear of retaliation by his or her employer. The National Labor Relations Board (“NLRB”), an independent federal agency with five members appointed by the president, enforces the NLRA and effectively controls its interpretation and application, subject to limited review by the courts. In less than a decade, the NLRB of the Obama administration extended the protections of the NLRA—in ways some would say were never contemplated by Congress—to employees’ work-related conversations conducted on social media, such as Facebook and Twitter. Those protections apply regardless of whether the employee is represented by a union or not. With this expansion of protection for social media activities, employers must carefully consider the NLRB’s decisions, or else proceed at their own peril.

The NLRB’s recent victory in NLRB v. Piers Sixty LLC illustrates the expanding definition of protected activity over social media. During an authorized break from work, an employee used his cell phone to post the following message on his Facebook page:

Bob is such a NASTY MOTHER F****R don’t know how to talk to people! ! ! ! ! ! F**k his mother and his entire f*****g family! ! ! ! What a LOSER! ! ! ! Vote YES for the UNION! ! ! ! ! ! !

“Bob” was the employee’s supervisor. The employee knew that his Facebook “friends,” including 10 co-workers, would see the post. The post was also publically available. Following an investigation, the company fired the employee for posting the message.

The employee filed an unfair labor practice charge with the NLRB alleging that he had been fired in retaliation for “protected concerted activities.” A three-member panel of the NLRB ultimately agreed, finding that using Facebook to discuss an upcoming union election, even with explicitly vulgar language, was “protected” under the NLRA.

On appeal, the U.S. Court of Appeals for the Second Circuit sided with the NLRB, finding that the employer failed to prove that the employee’s behavior “was so egregious as to lose the protection of the NLRA.” The Second Circuit noted that it afforded great deference to the NLRB’s interpretation of the NLRA and factual findings and that the employee’s conduct, while protected, “sits at the outer-bounds of protected, union-related comments.”

This case serves as a useful reminder about the important implications of employee communications over social media. Though we believe that change is coming to the NLRB—once President Trump’s Republican appointments get confirmed—rest assured that it will be slower than employers would otherwise prefer. Once the “new” composition of the NLRB is in place, it is hard to imagine that its current “outer-bounds” interpretations as to protected activities on social media will not be scaled back. Confidence is high that the newly composed Trump NLRB will take a more employer-friendly approach, once it gets firmly situated and can dig into its cases. Which issues are on the front burner and when they are addressed remain to be seen. With the NLRA landscape in flux, employers should continue to seek guidance from qualified employment attorneys before finalizing disciplinary decisions involving social media activities.