Like most every other business and agency today, the NLRB is staying on top of social media. Today, the Board’s acting general counsel issued a summary memo describing recent Board cases dealing with employee postings on Facebook and Twitter, as well as employers’ social media policies. A copy of the summary is attached here.
The Board’s take on social media comes through clearly: The current Board is aggressively positioning to find employee social media communications to be protected concerted activity. The Board makes little distinction as to whether those communications occurred in a traditional way, such as a rally or speech, or through social media vehicles like a tweet or Facebook post. (See Memo, page 4, relying on definition of concerted activity established in Meyers cases from 1984).
Similarly, the Board has repeatedly criticized employer policies that attempt to curtail what might be considered protected employee speech.
The summary shows that Board is, however, willing to draw a line. In determining that a news reporter’s offensive tweets, critical of a local TV station, were not protected, the Board’s summary memo explains:
His conduct was not protected and concerted: it did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.
There is no question that social media activity in the context of labor relations remains a hot button issue for the Board. It appears to be a matter of applying old rules and interpretations to new forms of technology. Thus, electronic communication policies that are too broad in their prohibitions will be challenged by the Board. Similarly, the Board will closely scrutinize employment decisions based on tweets and Facebook posts.