The National Labor Relations Board has embraced social media as a communication method for its own public outreach. The Board has a Facebook page, a Twitter stream and a YouTube channel. It also hired a media specialist last year to enhance its "modern outreach and education strategy aligned with the contemporary workforce and workplace." Regional offices of the Board are also getting into the act. The open question is how the NLRB views use of social media in the workplace.

Previously, NLRB decisions have upheld corporate social media policies which restrict employees' activities, both on and off the job, as long as those policies were intended to create a civil workplace and did not, explicitly or by application, restrict protected activity such as union organizing. Recent action by the NLRB may signal a change in that policy favoring union interests.

On October 27th, the NLRB's Hartford regional office issued a complaint against American Medical Response of Connecticut, Inc., for firing an employee over her personal use of social media at home. The employee had posted negative comments about her supervisor on her personal Facebook page which drew similar comments from co-workers. In response, the employee added further negative comments of her own. The complaint alleges that she was suspended and later fired because the postings violated AMR's internet and blogging policies, one of which prohibited employees from making disparaging remarks when discussing the company or its supervisors and another barred depicting AMR in any way on the internet without company permission. The complaint also alleges that the employer illegally denied the employee union representation when she requested it during an investigatory interview regarding a customer complaint.

The Board's regional office found that the postings were a protected, concerted activity and that the company's prohibitive policies violated the employees' right to engage in protected activity. What is unusual is that the Office of the General Counsel then publicized the decision in a national press release on November 2, 2010, signaling that the Board may be prepared to overrule past precedents and create a new policy less favorable to employer protection.

The Bush Board, in Lutheran Heritage Village - Livonia (2004) announced a three-part test to determine if company rules are valid under Section 7 of the NLRA. A social media policy or rule, which does not explicitly forbid union activity, would still be unlawful if (1) the employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights."

In 2008, in reviewing whether Sears Holding's social media policy was an unfair labor practice, the 18th Regional Director asked the Board's Division of Advice for comment. The particular policy prohibited the "disparagement of company's or competitors products, services, executive leadership, employees, strategy, and business prospects." The IBEW challenged the policy charging that it could discourage employee participation in protected union organizing activities. The Division of Advice, using the Lutheran Heritage Village test opined that the company's policy, as a whole, did not violate the Act, even while acknowledging that if the above language was read in isolation, it could have a chilling effect on employee behavior.

However, the re-constructed Board is vastly different than it was when those decisions were issued. In Lutheran Heritage Village members Liebman and Walsh strongly dissented, asserting that the rules in question were ambiguous and could penalize protected Section 7 activities by employees. Other past precedents are being overturned by the Obama NLRB and it would not be surprising if what was firm policy regarding permitted social media rules becomes turned on its head. Employers' restrictive social media policies should be revisited and possibly scaled back. A further word of warning, any discipline of employees for such use which occurs during an organizing drive should be closely scrutinized.