This week, the National Labor Relations Board launched a new webpage promoting its services to employees who believe they were disciplined for social media activities. Titled “Protected Concerted Activity,” this new webpage addresses Section 7 of the National Labor Relations Act which grants employees the right to engage in concerted activities for the purpose of collective bargaining or “other mutual aid and protection.” Section 7 has been interpreted to protect certain employee communications regarding wages, benefits and working conditions.
The new webpage states: “The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union.” Note the last clause which emphasizes that an employee does not have to be in a union to get the NLRB to take on the employee’s claim. Perhaps the reason for this emphasis is the fact that union membership has declined to merely 7% of private-sector employees. The NLRB’s webpage may be an attempt to make the agency more relevant even if union membership never increases.
The webpage is impressive. It has a map of the United States with markers for 13 cities in which social media cases have occurred. Hovering over a marker results in a pop-up with more information about the case in that city. Not so coincidentally, all 13 cases featured on the map are ones in which the Board found a violation of Section 7 by the employer or a settlement was reached and employees received back pay. The webpage, however, omits any mention of cases in which the Board did not issue a complaint or made a finding that Section 7 was not violated.
This latest NLRB initiative has certainly not gone unnoticed, especially among employers, management, and labor and employment legal professionals. Molly DiBianca at The Delaware Employment Law Blog commented: “Talk about some great marketing! It seems pretty clear that the message is targeted to non-unionized employees. It’s also evident that the NLRB is attempting to promote itself as the defender of all things wrong in the workplace.” Jon Hyman at Ohio Employer’s Law Blog also noted the traditionally union-focused agency’s reach into the overwhelmingly non-union workforce: “Trust me, it’s not a coincidence that the phrase ‘even if they aren’t in a union’ prominently appears on this webpage above the fold. It’s a calculated public relations strategy… The NLRB wants to be the go‑to agency for employees fired for talking about work.”