The National Labor Relations Board (“NLRB”) continues to issue rulings regarding employee use of social media in the workplace. As detailed in many prior posts, the NLRB enforces the National Labor Relations Act (“NLRA”) which covers employers (unionized or not). As described in those prior posts, the NLRB often finds that employees who post comments critical of their employers on social media are protected as “protected concerted activity” under Section 7 of the NLRA. (More details below).
In a February 7, 2017 decision, the NLRB once again protected an employee’s use of Facebook and critical and negative posts in Laborers’ International Union of North America, Local Union No. 91 and Frank S. Mantell. However, there is a twist.
What’s The “Twist”?
In this case, Mantell did not publish Facebook posts critical of his employer. He did not work for the Laborer’s International Union of North America, Local Union No. 91. Instead, Mantell was a member of Local Union No, 91, and his Facebook posts complained about his own Union and the Union Business Manager.
As the NLRB describes, the case focuses upon Mantell’s Facebook posts that criticized Richard Palladino, the Union’s Business Manager, for “failing to apply established union policies by giving a city councilman running in the Democratic primary for mayor, a journeyman’s book without having him go through the required apprenticeship program. Mantell’s Facebook posts raised issues concerning the efficacy and fairness of the [Union’s] operations and procedures.
Mantell’s specific Facebook posts included the following:
- “It’s not that we are corrupt. It’s just the leader of our union and our small 3 man PAC committee will back any politician who will promise benefits to us even though they are not the best choice for our city or county.”
- “I am not running for mayor and receiving gifts from our union. I am just a voice in a rather dictatorship of a union. And I am exposing him for who and what he is. Our union deserves better.”
- “More of a reason not to give a journeyman union book to a politician when we have an apprenticeship program in place. This kind of bad decision making does not help us in the eyes of the International.”
In response to these posts, the Union took action against Mantell. The Union suspended Mantell’s union membership for two years, fined him $5,000.00, and removed him from the Union’s out-of-work referral list, which prevented Mantell from obtaining work.
The NLRB’s Analysis of the NLRA
Generally, the National Labor Relations Act (NLRA), enacted by the U.S. Congress in 1935, deals with employee rights concerning union representation and collective bargaining in the workplace. Under Section 7 of the NLRA, employees have the “right” to participate in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Under this section of the NLRA, concerted activity is considered “protected” when it concerns terms or conditions of employment. With social media, employees are often tweeting, making Facebook posts and writing on blogs about working conditions. As with many aspects of SM, however, the law has not quite caught up with technology and employee use of available technology.
The National Labor Relations Board (NLRB) is the federal agency tasked with enforcing the NLRA. It too was created in the 1930’s. Recently, the NLRB has been one of the most active federal agencies to tackle many employer-employee issues including the use of social media in the workplace. Additionally, the NLRB’s General Counsel has issued several reports and guidance memos regarding social media in the workplace.
Here, the NLRB wrote that it is “elementary” that “an employee’s right to engage in intraunion activities in opposition to the incumbent leadership of his union is concerted activity protected by Section 7.” The NLRB then analyzed the “Union’s interests at stake in this case,” which the Union argued “that Mantell’s Facebook posts damaged both its reputation in general as well as the reputation of Palladino as business manager, the latter of which adversely affected Palladino’s ability to effectively perform his leadership responsibilities.” The NLRB found that “Mantell’s Section 7 right to press the union to change its policies, especially those policies affecting members’ employment opportunities, outweighs the Respondent’s vague claim that its reputation was damaged.” Consequently, the NLRB adopted the Administrative Law Judge’s finding that “Mantell engaged in protected, concerted activity by posting his criticisms of the Respondent and its business manager on Facebook.” As a result, the Union was directed to make Mantell whole for any loss of earnings, including backpay, expenses for job searching, and interest.
The complete decision by the NLRB can be found here: Laborers’ International Union of North America, Local Union No. 91 and Frank S. Mantell.
What This Means For Employers
Employers, unionized or not, should review this newest NLRB decision on social media in the workplace, and continue to be cautious when taking action against employees for posting on social media. While this decision did not “go against” an employer, it demonstrates the NLRB’s continued approach to protect employee activity. Employers should continue to refine social media policies and train supervisors and managers regarding this topic, and other topics for managers/supervisors to perform their jobs within legal parameters.
DISCLAIMER: Information provided on this website is not legal advice. It does not create an attorney-client relationship. Nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.