OFFICE OF THE GENERAL COUNSELDivision of Operations-ManagementMEMORANDUM OM 11-74August 18, 2011To:All Regional Directors,Officers-in-Charge,and Resident OfficersFrom:Anne Purcell, Associate General CounselSubject:Report of the Acting General CounselConcerning Social Media CasesAttached is a report of the Acting General Counselconcerning social media cases within the last year./s/A.P.Attachmentcc: NLRBURelease to the PublicMEMORANDUM OM 11-74
NATIONAL LABOR RELATIONS BOARD
OFFICE OF THE GENERAL COUNSELWASHINGTON, D.C. 20570
REPORT OF THE GENERAL COUNSELDuring my term as Acting General Counsel, I have endeavoredto keep the labor-management community fully aware of theactivities of my office. It is my hope that this openness willencourage compliance with the Act and cooperation with Agencypersonnel. As part of this goal, I continue the practice ofissuing periodic reports of cases raising significant legal orpolicy issues.This report presents recent case developments arising inthe context of today’s social media. Social media includevarious online technology tools that enable people tocommunicate easily via the internet to share information andresources. These tools can encompass text, audio, video,images, podcasts, and other multimedia communications. Recentdevelopments in the Office of the General Counsel have presentedemerging issues concerning the protected and/or concerted natureof employees’ Facebook and Twitter postings, the coercive impactof a union’s Facebook and YouTube postings, and the lawfulnessof employers’ social media policies and rules. This reportdiscusses these cases, as well as a recent case involving anemployer’s policy restricting employee contacts with the media.All of these cases were decided upon a request for advice from aRegional Director.I hope that this report will be of assistance topractitioners and human resource professionals.___________/s/_____________Lafe E. SolomonActing General Counsel
Employees’ Facebook Postings About Job Performance andStaffing Were Protected Concerted ActivityIn one case, we found that an Employer--a nonprofit socialservices provider--unlawfully discharged five employees who hadposted comments on Facebook relating to allegations of poor jobperformance previously expressed by one of their coworkers--adomestic violence advocate. We concluded that the dischargedemployees were engaged in protected concerted activity.In or around July 2010, the advocate began complaining toone particular coworker that clients did not want to seekservices from the Employer. Similarly, in August she hadconversations with other coworkers in which she criticized thework done by the Employer’s employees. She also sent regulartext messages to the one particular coworker, criticizing otheremployees’ work performance and complaining about workloadissues.In early October, the advocate discussed several client andworkload issues with this one coworker, with the advocateasserting, among other things, that the coworker had notproperly assisted a client. They exchanged multiple textmessages related to these issues. During the final exchange ofmessages, the advocate said that the Employer’s ExecutiveDirector would settle their differences.The one coworker then talked to another employee about whatshe considered to be a constant barrage of text messages fromthe advocate criticizing the job performance of the Employer’semployees. This employee suggested that she meet with theEmployer’s Executive Director.To prepare for this meeting, the one coworker posted onFacebook that the advocate felt that her coworkers did not helpthe Employer’s clients enough. She then asked her coworkers howthey felt about it. The four coworkers who were laterdischarged and the advocate responded to the Facebook posting.That evening, the advocate reported the Facebookconversation to the Employer’s Executive Director, indicatingthat she considered her coworkers’ Facebook comments to be“cyber-bullying” and harassing behavior.On the next workday, the coworker tried to meet with theExecutive Director. The Executive Director said that she wasbusy, but that she would call when she was available. A fewhours later, the coworker was called to the Executive Director’soffice and was terminated. That same day, the Employerterminated the four other employees who had posted Facebookresponses to their coworker’s initial solicitation.
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August 18, 2011 NLRB Report Re Social Media
In this report the NLRB's Acting General Counsel details recent matters handled by the NLRB regarding whether use of social media by employees constitutes protected activity and whether employer policies and practices regarding social media were found by NLRB to be lawful.
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