The National Labor Relations Board issued three important decisions recently that affect how employers manage their employee's speech in social media, the production of documents to unions created through internal investigations and how employers issue written discipline to union employees in the absence of a contract.

In Hispanic United of Buffalo, Inc., the NLRB cemented its position that it will protect employees' speech that engages in a concerted and protected activity regardless of whether it is spoken or communicated electronically. In Hispanics United, an employee, Lydia Cruz-Moore, texted her co-worker, Marianna Cole-Rivera, while both were off-duty and told her she planned to tell a supervisor that she believed her co-workers were not adequately performing their duties.

In return, Cole-Rivera made a comment on her Facebook page: "Lydia Cruz, a coworker feels that we don't help our clients enough at [Hispanics United]. I about had it! My fellow coworkers how do u feel?" Four off-duty employees posted on the Facebook page in response to Cole-Rivera's comment with statements that generally objected to the assertion that their work performance was substandard. Cruz-Moore also responded to the Facebook post and demanded that Cole-Rivera "stop with ur lies about me." Cruz-Moore printed the Facebook comments and showed them to her supervisor. The supervisor subsequently terminated Cole-Rivera and her co-workers on the grounds that their Facebook post violated the employer's "zero-tolerance" policy prohibiting "bullying and harassment."

Section 7 of the National Labor Relations Act (NLRA) provides that all workers — and not just workers in labor unions — may engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Generally, two or more employees acting together to address a collective employee concern about terms and conditions of employment is considered protected concerted activity. Protected concerted activity will also be recognized where individual employees seek to initiate or prepare for group action. 

In Hispanics United of Buffalo, the NLRB ruled that by making the Facebook posts, the terminated employees were taking the first steps toward group action to defend themselves against Cruz-Moore's comments. Furthermore, the NLRB also believed that the content of the Facebook posts was also protected concerted activity because Section 7 protects employee discussions about their job performance. Given the negative impact Cruz-Moore's comments could have made on her co-workers' employment, the NLRB believed the terminated co-workers were clearly engaged in a protected concerted activity in mutual aid of each other's defense to those criticisms. 

The employer's zero-tolerance for harassment and bullying was not sufficient grounds to protect the employer from an adverse ruling. The NLRB reiterated that legitimate managerial concerns to prevent harassment do not justify polices that discourage the free exercise of Section 7 rights. 

As a result of the NLRB's ruling, employers are put on notice that employees' speech may be regarded as a protected activity, despite the fact that the speech was created during off-work hours or through electronic communication. Additionally, employers must take care when utilizing policies as a basis to justify discipline-related employees' social media posts. Before taking action, employers must be sure that the policy would be upheld and that the employee's conduct was squarely within the confines of the policy.

The Witness Statement Case

In another matter recently decided, the NLRB held that an employer must disclose to union representatives a co-worker witness statement if the statement is adopted by the witness and the employee was not given a promise of confidentiality at the time she provided the statement. In Stephens Media LLC d/b/a Haw. Tribune-Herald, the employer terminated a union steward for insubordination when the union steward became involved in an argument with a supervisor. The argument concerned whether an employee was permitted to have a witness accompany her to a meeting with the supervisor regarding whether she violated a company policy. The employee who witnessed the argument gave a statement to another supervisor who subsequently prepared a statement based on the interview. The employee subsequently read the statement and made changes. The employer later fired the union steward and refused to provide any information from the employee interviews in response to a grievance filed by the union. 

Previous NLRB decisions found that investigative reports did not need to be provided to the union where the report was not reviewed by the interviewed employee because the employee did not adopt the statement without a review of the report. Additionally, previous decisions have also found that witness statements did not need to be disclosed where the employees did not adopt the statement or receive assurances of confidentiality before they signed the statement. Applying the previous decisions to Stephens Media d/b/a Haw. Tribune-Herald, the NLRB found that the employee's statement was not exempt from disclosure to the union because: (1) she adopted the statement when she reviewed and made changes to the statement and (2) she did not receive any assurances that it would remain confidential. The NLRB disregarded the employer's insistence that the statement was privileged because it was created in anticipation of arbitration because the NLRB believed the assertion of privilege was nothing more than a conclusory statement without any factual support.

In light of the Stephens Media d/b/a Haw. Tribune-Herald decision, unionized employers should be cognizant of the fact they will be required to disclose witness statements to the union upon the union's request if the employee was not promised confidentiality before the employee signed the document. However, the decision also implies that the employer will not be required to furnish the statement where the employee does not adopt the statement or is promised confidentiality prior to adoption of the statement.

The Case Related to Employee Discipline

The NLRB also issued an important decision that requires employers to give bargaining opportunities to unions before enforcing any discretionary discipline on its unionized employees in circumstances when no contract is in place that provides a structure as to the disciplinary penalties to be given. In Alan Ritchey Inc. and Warehouse Union Local 6, International Longshore and Warehouse Union AFL–CIO, during a period before the employer and the union had reached a collective bargaining agreement, the employees challenged each form of discipline they received on the grounds that the policies were not uniformly applied to all employees. The NLRB subsequently ruled that unions must be informed of discretionary employee suspensions, demotions or terminations that are made on a case-by-case basis before they are implemented in circumstances when there is no contract in effect. The NLRB explained it believed requiring employers to notify unions of disciplinary measures prior to the measure's implementation will lead to a more uniform application of rules of conduct.

After Alan Ritchey Inc., unionized employers who do not have a contract in place should notify unions of all discretionary employee discipline before the discipline is issued. This policy will not apply to disciplinary actions that were made prior to the issuance of the NLRB's ruling. Also, this new rule will not apply to non-union employers, unionized employers with collective bargaining agreements in place that provide for the parties' rights/discretion related to employee discipline, oral or written warnings for misbehavior given by union employers pre-contract, or aspects of employee discipline that are consistent with past practice or policy. However, a bargaining obligation will occur to changes in workplace policies and rules and employee suspensions, demotions, and firings in unionized workplaces pre-contract that do not have a past practice or policy in place related to such matters. Notably, even where there is an obligation to bargain over the level of discipline, the Board in Ritchey indicated that the parties do NOT have to bargain to impasse prior to the employer issuing its preferred level of discipline.