Really, the employer won.
The NLRB actually sided with an employer on a social-media related issue. The Board even has a press release. [Quick Google -- start caching].
Quoted below from the press release is a summary of the decision (here) and the Board's findings:
The National Labor Relations Board has found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected.
The National Labor Relations Act protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. An individual's actions can be protected if they are undertaken on behalf of a group, but the judge found, and the Board agreed, that was not the case here.
As Judge Biblowitz wrote, "It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees' terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting."
because this is the Obama NLRB, this wasn't a total employer victory.
As I predicted a year ago, the Board found that a company rule asking employees not to be disrespectful or use language which injures the image or reputation of the employer violates the National Labor Relations Act. The Board reasoned that "the Respondent would regard statements of protest or criticism as "disrespectful" or "injur[ious] [to] the image or reputation of the Dealership."
Three takeaways for employers.
- The Board decision reinforces an important point driven home in the previous guidance employers received from the Board's Acting General Counsel. That is, individual employees who gripe about their own workplace issues may be disciplined for griping. That's not to say that you should necessarily discipline a complainer. Instead, counseling could be the answer.
- If you intend to terminate a complainer, investigate first to determine whether the complainer was acting alone. If it turns out that the subject employee was commiserating with other employees about terms and conditions of employment, those employees may be engaged in protected concerted activity which, as noted above, the National Labor Relations Act protects. Any subsequent discipline could violate the Act.
- Another point worth noting is that the employer here was a non-union employer. So, don't forget that the National Labor Relations Act applies to both union and non-union private-sector employers.