Workers who gripe about the boss or their colleagues on Facebook may again be at risk of getting fired unless a U.S. appeals court decision is reversed.
The National Labor Relations Board ruled last year that employees can use social media to complain or comment on management, without retribution. The decision was among 220 issued in 2012 by the five-person board, three of whose appointments were ruled invalid last week by the U.S. Court of Appeals in Washington.
“It puts all of the board’s actions into question,” Jeffrey Hirsch, a professor at the University of North Carolina School of Law, said in a phone interview. “If you’re an employee who’s been fired, and you want your job back, you’re not going to get it until this is resolved.”
The unanimous ruling may upend decisions involving companies such as DISH Network Corp. (DISH), Station Casinos LLC and Gannett Co. on a range of issues related to negotiations over contract terms, access to the workplace when employees are off duty and whether union dues can be deducted from paychecks after collective bargaining agreements expire. The NLRB enforces labor law and investigates complaints brought by employees, management and unions.
In one of two Facebook-related cases, the board on Dec. 14 ordered Hispanics United of Buffalo Inc., a nonprofit, to reinstate and restore the pay of five employees fired in 2010 after they joined a Facebook discussion to defend their work against comments by a co-worker. The organization dismissed the five workers, citing harassment using Facebook.
In September, the board directed a Chicago-area Bayerische Motoren Werke AG dealership to rescind a policy in its employee handbook barring language that might harm the dealership’s image. The board didn’t require Karl Knauz Motors Inc. to re- hire the worker, who used his Facebook page to mock a sales event and post photos of an accident at a co-owned Land Rover dealership.
A 2012 review of seven cases before the NLRB found at least six employers had social-media policies that were “overbroad and thus unlawful” under U.S. labor law, according to a May report from Lafe Solomon, acting general counsel.
The appeals court ruling last week may prompt employers to ignore some of the 2012 decisions, including policies regarding workers’ use of social media, according to Charles Craver, a professor at George Washington University Law School in Washington.
The decision, which found President Barack Obama violated the Constitution in part by making recess appointments when the Senate wasn’t technically in recess, also may spur employers who lost a case to file an appeal with the court.
It’s not yet clear whether all board decisions made since Obama’s appointees took office will unravel or whether challenges will be considered on a case-by-case basis, Chaison said in an interview.
“Any employer that’s thinking of seeking review right now should go to the D.C. Circuit, which they can do,” Arthur Carter, a lawyer with Haynes and Boone LLP in Dallas, said in a phone interview. Employers who have complied with NLRB’s decision during the year may choose not to challenge, he said.
The NLRB and the Obama administration said the Jan. 25 appeals court decision only applied to a case filed by Noel Canning Corp., part of Noel Corp., a bottler and distributor of PepsiCo Inc. (PEP) products based in Yakima, Washington. The company had gone to the court to challenge an NLRB ruling that required the company to honor an agreement negotiated with a union. Teamsters Local 760, representing the workers, said Noel Canning refused to carry out a written agreement, a claim the NLRB backed.
The administration hasn’t said if it will appeal the ruling by the three-judge panel. An appeal could include a request to delay enforcement until the case is heard by the full court or possibly by the Supreme Court.
The ruling by the Washington court conflicts with decision on the president’s recess appointment powers handed down by three sister appeals courts, which took a more expansive view in cases involving presidents Dwight D. Eisenhower, Jimmy Carter and George W. Bush. The split among the circuits makes it more probable that the Supreme Court will take up the case.
The NLRB is “sort of whistling by the graveyard in some respects in thinking that they can confine this to only a certain number of cases,” Stanley Craven, a lawyer for Spencer Fane Britt & Browne LLP in Overland Park, Kansas, said in a phone interview.
The NLRB in September said Craven’s client, a subsidiary of Compass Minerals International Inc. (CMP), hadn’t reached an impasse in contract negotiations and implemented a work schedule over the employees’ objections.
While the court’s decision did not automatically overturn unrelated NLRB rulings, “every case in every circuit is potentially overturned” because companies can appeal cases to the Court of Appeals in Washington, he said. Craven has appealed to federal appeals court in New Orleans, where it is pending.
The board in September said Fresenius USA Manufacturing Inc. unlawfully fired an employee who wrote on union newsletters displayed in a break room comments that co-workers found offensive. The company is appealing the ruling in part on the assertion that the board lacked a full quorum.
“We believe that it will have the same result” as the Noel Canning case, Thomas Servodidio, a lawyer with Duane Morris LLP in Philadelphia that is representing Fresenius, said in a phone interview.
Obama’s board has upheld worker protections regarding terms of employment, and this may be in jeopardy if Senate Republicans stall action on the president’s nominees, or if the Supreme Court upholds the ruling, said Eve Weinbaum, director of the Labor Relations and Research Center at the University of Massachusetts in Amherst.
“The fear is that there will be four years of a board not being able to make decisions” she said in a phone interview. “That’s a very real possibility if the D.C. Circuit is upheld.”
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