Part II - Unprotected Conduct
In the recent NLRB social media memo, the NLRB provided numerous examples of employee NLRA-protected social media use, unprotected social media use, and the proper scope of employer social media policies. One case in the memo, however, sticks out as not falling into one of those categories: a union YouTube violation.
The fact pattern as described by the NLRB:
A Union business agent and three Union organizers visited the worksite of a nonunion subcontractor. The Union representatives did not identify themselves or reveal their Union affiliation. One carried a video recorder. After climbing to the roof where employees were working, the chief Union spokesman told the employees that they had to ask some questions, that they were inspecting the job, and that they had reports of illegal workers. He then asked three employees about their country of origin, their immigration status, whether they had "ID’s," when and how they were hired, how they were paid, how they paid their taxes, and whether they supplied social security numbers or the Employer assigned them numbers.The Union agents then threatened to return and check IDs later, and handed over some tapes of the interrogations to federal and state government officials.
So far, we have some unlawful conduct but no real social media use. The NLRB notes violations of NLRA section 8(b)(1)(A) for infringing on the non-union employees protected right to work for a nonunion employer. The NLRB also noted that union threats to call authorities and have the employees deported constituted unlawful coercion.
That's great... but what about the social media!? Well, the Union agents also posted video of their interrogations to YouTube and their Local's Facebook page. Per the advisory opinion:
Any employee who viewed these postings, either through the YouTube link that expressly named the Union or through the Local's Facebook page, were subject to the same coercive message conveyed to the workers at the job site.So, the takeaway from this (other than avoiding the stupid shenaningans of harassing nonunion workers on job sites) is that unlawful coercion can take place via social media.
Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.