In a vigorous dissent to the 2007 Board decision, Guard Publishing Co., d/b/a The Register-Guard, 351 NLRB 1110 (2007), current Chairman Wilma Liebman declared:
National labor policy must be responsive to the enormous technological changes that are taking place in our society.
In the latest example of the National Labor Relations Board’s efforts in this regard, various sources are reporting that the Regional Office for Region 2 is prepared to proceed with a case against a publisher for maintaining a social media policy which it alleges unlawfully restricted an employee’s use of Twitter to criticize the employer. The New York Times reports, and theunion representing the employee confirms, that the Regional Office has notified the parties that, absent settlement, it will be issuing a complaint. Per the Times:
The board asserts that the company’s Reuters news division violated the reporter’s right to discuss working conditions when her supervisor reprimanded her for posting a message on the Twitter service that said, “One way to make this the best place to work is to deal honestly with Guild members.”
The author of the post, Deborah Zabarenko, the agency’s environmental reporter in Washington and the head of the Newspaper Guild at Reuters, sent that to a company Twitter address after a supervisor had invited employees to send postings about how to make Reuters the best place to work.
What is unclear from the NYT report is that the Twitter posting was public — and not a "DM," or private "Direct Message" in Twitter parlance. Labor attorney Eric B. Meyer has posted this screen cap of how the message appeared in her employer’s Twitter feed:
While we have not yet seen any draft or intended complaint, the Times account suggests that the employee was not actually disciplined. Accordingly, it would seem that the Board is alleging that the employee was chilled in the exercise of her rights under the Act by her supervisor’s alleged phone call to her and/or the mere maintenance of an allegedly "over broad" social media policy.
The union which filed the ULP charge likewise suggests that the complaint would allege the employer violated the law by both:
Illegally implementing restrictions on employees’ use of social media that would chill federally protected speech about working conditions (a violation of Section 8(a)1).
Applying the illegal Twitter policy to a Guild-represented employee (another 8(a)1 violation).
While the more widely discussed American Medical Response case involved an employee fired for a Facebook posting about her supervisor, the more recent Student Transport of America case alleged that the employer violated Section 8(a)(1) of the National Labor Relations Act merely by "maintaining" a specific social media policy in its employee handbook. There was no actual discipline imposed by the employer in the latter case. Both cases settled — Student Transport prior to the issuance of a complaint.
The union reports the NLRB’s threatened complaint in this case covers significant issues regarding the parties’ collective-bargaining negotiations — of far broader import than a single Tweet by an employee. Indeed, the union describes the complaint as "massive." As a result, the seemingly relatively minor Twitter allegations may be settled out, robbing us again of a definitive Board Decision and Order on these issues. But at this rate, it won’t be long before another social media charge is taken up for further consideration.
More commentary and resources:
- "Another Social Media Skirmish: Discipline for a Tweet Gets the NLRB Involved" — Eric B. Meyer on TLNT
- "NLRB Set to Move Against TR" — The Newspaper Guild of New York
- "Labor Disputes Arising out of Social Media" — Law.com (Sept. 28, 2010)