On May 2, 2013, the National Labor Relations Board (Board) ruled that a New York City tour guide’s email and Facebook postings were protected by Section 7 of the National Labor Relations Act (NLRA) as a continuation of the tour guide’s union organizing activities. What is surprising about this case, however, is that neither the email nor the Facebook postings were directed to the tour guide’s fellow coworkers, but instead to tour guides of other New York City tour companies.
New York Party Shuttle, LLC contended the tour guide had been discharged due to his prior work record with the company and the unprofessional behavior he exhibited in sending the electronic communications to third parties.
In upholding the administrative law judge’s finding that the company had unlawfully discharged the tour guide when it failed to give him any assignment after the email and Facebook postings, the Board noted that the communications “constituted union activity, even if directed to tour guides of other New York City companies.” The Board noted that the email and Facebook postings were an “obvious continuation” of the tour guide’s prior organizational activity, which the company knew about. In other words, the Board found that simply writing about union organizing was sufficient to bring the electronic communications under the protections of the NLRA.
Similarly, the administrative law judge was unconvinced by the company’s argument that the communications were not protected because they were libelous, stating that “virtually all” the accusations were true and could therefore not be deemed libel.
This case represents yet another reminder as to why employers should exercise caution if considering action over an employee’s Facebook postings. Though this area of the law is still developing, it is clear that the Board will continue to expand the protections afforded to employees’ electronic communications.