An employee who posted a damning, but stolen, document on Facebook lost the protections of the National Labor Relations Act, under an Advice Memorandum issued by the National Labor Relations Board’s (“NLRB”) Division of Advice.FN1
The case involved employee and management conduct during a union organizing campaign. Employees at the facility believed management was paying bonuses to supervisors to “fight the union,” and the company denied the rumor.FN2 An employee found a document on a supervisor’s desk supposedly showing the supervisor had asked for a bonus for not supporting the union. The employee took the document and copied it, and a coworker posted the copy on the Union’s Facebook group page, getting several “likes.” Management fired the employee who posted the document for violating the company’s social media policy, which barred the posting of internal confidential documents.FN2
The Division found that the employee who posted the document was engaged in protected concerted activities under Section 7 of the National Labor Relations Act (“NLRA”)FN3 because his post concerned the union campaign and employee compensation. However, the employee’s acts lost the protection of the NLRA because he had no right to take, let alone distribute, the supervisor’s bonus request form, and he knew the document was wrongfully taken.
Although the NLRA generally protects employees’ rights to work together to improve their pay and working conditions, employees may lose protections if they take and distribute information that they have no right to access or engage in other egregious conduct. Whether conduct is considered protected in these circumstances is heavily fact dependent, and employers therefore are encouraged to consult with an attorney when assessing disciplinary and discharged decisions possibly related to protected activity.
FN1: See file:///C:/Users/Daniel%20Combs/Downloads/10_CA_208153_06_11_18_.pdf.pdf. The NLRB’s Division of Device provides guidance to the NLRB’s regional offices regarding certain issues relating to unfair labor practice charges. See https://www.nlrb.gov/news-outreach/news-story/jayme-l-sophir-lead-division-advice
FN2: The Division found that the social media was reasonable and lawful under the guidelines set forth in Boeing, 365 NLRB No. 154, slip op. at 4-5.
FN3: Section 7 of the NLRA gives employees the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. 29 U.S.C. § 157. Employees also have the right to not engage in such activities. Id.