Why the NLRB Matters: Free Speech in the Workplace

Washington, DC – With the future of the National Labor Relations Board (NLRB) in jeopardy, the Communications Workers of America (CWA) today announced the launch of a Facebook campaign and accompanying social media push that highlights the role of the NLRB in protecting free speech in the workplace.

While there has been recent focus on the important role of the NLRB in maintaining American labor law and protecting workers’ rights to organize, less attention has been paid to the NLRB’s role as the protector of employees’ right to speak out online about working conditions without fear of firing or discipline.

The NLRB has stood up for workers’ right to freely discuss their jobs, bosses and workplaces on Twitter, Facebook and other online forums. This makes the upcoming US Senate battle to confirm the full slate of five NLRB nominees all the more important for American workers who use social media.

Later this summer, the US Senate will likely take up the slate of President Obama’s five qualified nominees to the NLRB.  Two of the five seats on the NLRB are currently vacant and the term of another member will expire in August. Without the Senate majority taking action to overcome obstruction and move these nominees forward, the NLRB will stop functioning by late August.

As the new memo highlights, social media free speech has become an important – and growing – focus of the NLRB.  Acting NLRB General Counsel Lafe Solomon noted that there has been a “strong uptick” in the number of social media cases handled by the NLRB, including over 100 cases involving social media since 2010.  These include:

• Social Media Policies: When T-Mobile USA revamped its social networking policy, it made anonymous comments on social media websites an offense that could result in termination. It was the company’s latest attempt to silence workers who had been articulating workplace issues and discussing joining CWA on worker forums, Facebook and Twitter. CWA filed an unfair labor practice charge, asserting that this was a violation of employees' “protected concerted activity” under the NLRA. But before the case went to trial, T-Mobile USA agreed to a settlement. The company was required to inform all of its employees that they may discuss work-related issues on Facebook and similar websites without fear of reprisal.
  
  More recently, because of another CWA charge, a NLRB judge ordered DISH Network to change its social media policy that prevented workers from making “disparaging or defamatory” comments about the company. The policy infringed on employees’ rights, as workers could "reasonably construe" this rule to mean they can't criticize their employer's labor practices.

• Talking about your boss: At Bettie Page, a woman’s clothing store in San Francisco, a group of employees had lodged a number of complaints with the store owners about their manager’s unprofessional behavior. Frustrated with being ignored, employees finally took to Facebook. Holli Thomas posted, “needs a new job. I’m physically and mentally sickened.” Vanessa Morris responded that the manager is “as immature a person can be” and Brittany Johnson agreed that “bettie page would roll over in her grave.” Thomas, Morris and Johnson were fired on trumped up charges. But they filed a complaint, and a NLRB judge found that they lost their jobs as a direct result of their Facebook activity. Bettie Page had clearly violated the worker's "protected concerted activity" rights under the NLRA, and the judge ordered that it reinstate the three clerks with compensation for any loss of earnings and benefits.
  
  
• Discussing Work Conditions: At Hispanics United of Buffalo, a nonprofit social services provider in New York, Mariana Cole-Rivera started a Facebook thread, asking, “Lydia Cruz, a coworker feels that we don't help our clients enough at HUB. I about had it! My fellow coworkers how do you feel?” Her colleagues immediately voiced their support, writing, “Try doing my job. I have five programs” and “What the hell, we don’t have a life as is.” Cole-Rivera and four caseworkers who responded to her lost their jobs. But the NLRB found that their posts were the type of “concerted activity” for “mutual aid” that is expressly protected by the NLRA, since it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels. The judge ordered that the fired workers be fully reinstated to their jobs with back pay.

As companies adapt to 21st century technologies, the NLRB has shown to keep pace with protecting workers and their rights to free speech. Without the NLRB’s important protections and enforcement, employers would never be held accountable and workers would have no legal recourse for unjustified firings over workers’ tweets or Facebook posts.

• Read the new backgrounder on the NLRB and free speech in the workplace: http://cwa-union.org/nlrb-free-speech
• For more information on CWA’s latest social media campaign, please visit here: https://www.facebook.com/FreeSpeechOnline
  

Contact: Chuck Porcari or Kendra Marr Chaikind, CWA Communications, 202-434-1168, cporcari@cwa-union.org and kmarr@cwa-union.org