A number of recent developments involving the National Labor Relations Board suggest that the Board is expanding the reach of the National Labor Relations Act as it applies to non-union employers. Three such developments are discussed below.
On January 28, 2011, the Board held a company liable for violating § 8(a)(1) of the NLRA when it fired an employee who might have, but had not yet, engaged in protect concerted activity. Specifically, the Board held that Parexel International LLC violated the Act by terminating the employment of Theresa Neuschafer after she complained to her supervisor that certain employees received special treatment at the pharma-ceutical research company. According to the Board, even though Neuschafer had not engaged in concerted activity, her termination was “a pre-emptive strike to prevent her from engaging in activity protected by the Act.” Noting that the “suppression of future protected activity is exactly what lies at the heart of most unlawful retaliation against past protected activity,” the Board concluded that it was not fatal to Neuschafer’s claim that she had not yet engaged in concerted activity. Accordingly, “[i]f an employer acts to prevent concerted protected activity—‘to nip it in the bud’—that action interferes with and restrains the exercise of § 7 rights and is unlawful without more.”
The question of the extent to which employee use of “social media” like Facebook and Twitter can be protected by § 7 of National Labor Relations Act (which protects “concerted activities” for “mutual aid and protection”) is a vexing one for employers. In a recent filing against American Medical Response of Connecti-cut (“AMR”), the General Counsel of the National Labor Relations Board proffered an expansive view of § 7. AMR terminated an employee after the employee violated the company’s “Blogging and Internet Posting Policy” by posting negative comments about her supervisor on her Facebook profile from her home computer. The policy prohibited employees from posting comments or pictures that depict the company in any way, on any form of media, absent express written approval, and from making any disparaging comments when discuss-ing the company or the employee’s supervisors.
On October 27, 2010, the General Counsel issued an unfair labor practice complaint against AMR. It alleged AMR interfered with employees’ § 7 right in two ways: (1) by firing the employee in retaliation for engaging in “concerted activity,” i.e. posting negative comments on Facebook; and (2) by maintaining an overly broad policy. In so doing, the General Counsel asserted the novel position that speech on Facebook and similar social media sites constitutes “concerted activities” pursuant to the NLRA.
A decision on the merits of the General Counsel’s position will have to await another day, however. On January 24, 2011, one day before a scheduled hearing with an administrative law judge, the case settled, with AMR agreeing to change its policy. AMR indicated that its new employee internet policy will not restrict employees from discussing wages, hours, and working conditions with co-workers and others when not at work. AMR made a separate private agreement regarding the discharged employee.
A third development that may have a significant impact on employers is the Board’s proposal of a new rule requiring all employers subject to the NLRA to post physical, and in some cases electronic, notices advising employees of their § 7 rights, including the right to organize, form or join a union, bargain collectively through a union representative, and engage in concerted activities with other employees. See Notice of Proposed Rule, 75 Fed. Reg. 80410-80420 (Dec. 22, 2010). The Board contends that the rule is necessary because it believes most employees are ignorant of their NLRA rights and that the posted notice will encourage employees to enforce, and dissuade employers from violating, employees’ NLRA rights.
Under the proposed rule, the notice must provide detailed descriptions and examples of employees’ rights under the NLRA. The NLRB recommends that the notice’s content track the notice requirement concern-ing organization rights imposed by the Department of Labor on federal contractors. If a covered employer fails to provide notice, the proposed rule provides for sanctions including: (1) characterizing the failure to post the required notices as an unfair labor practice; (2) tolling the sixth-month statute of limitations for filing unfair labor practice charges against the non-posting employer; and (3) considering knowing failure to post as evidence of ‘unlawful motive’ in an unfair labor practice case. Republican Board member Brian Hayes objected to the proposed rule.