Over the past few years, the National Labor Relations Board (NLRB) has taken issue with employers that discipline employees over Facebook and other social media postings. The NLRB allows employees to discuss wages and other terms and conditions of employment through social media regardless of the public nature of the posting. In fact, the NLRB has allowed significant criticism of employers by employees regardless of the business impact of the comments. The NLRB’s aggressive enforcement in this area has been encouraged and supported by organized labor. However, one local union may be rethinking that support.

In late 2015, Local 91 member Frank Mantell was removed from Local 91’s out-of-work list (the list from which employer’s hire Local 91’s members) after Mantell posted comments on Facebook which were critical of Local 91’s leadership. Local 91 contended that the Facebook comments harmed the ability of Local 91’s business agent to run the local. Local 91 tried and convicted Mantell. On appeal, the international union dismissed the charges against Mantell and reinstated him to the out-of-work list.

In addition to appealing through the union’s internal process, Mantell also filed an unfair labor practice charge (ULP) against Local 91 alleging a violation of  Section 8(b)(1)(A) of the National Labor Relations Act (Act), which prohibits unions from restraining employees in their use of Section 7 rights. Section 7 rights guarantee employees the right to “… engage in other concerted activities for the purpose of … mutual aid or protection…” The ALJ who heard the matter agreed with Mantell, finding that the Facebook postings were protected activity in that Mantell was seeking common cause with other employees and, therefore, Local 91’s actions violated the Act. Laborers Union Local 91, NLRB ALJ, No. 03-CB-163940, 9/7/2016

It is good to see the law being applied in an even-handed manner in this area.

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