It seems that there is at least one press release from the NLRB each week about an employer being charged with an unfair labor practice for disciplining or terminating an employee for posting on Facebook. As the media and commentators focus on this area of employment law, it is increasingly becoming clear that those who are reporting do not necessarily understand how the NLRB works. The most recent example of this misunderstanding can be found in looking at the media reports about an Advice memorandum from the NLRB's Division of Advice to the Regional Director in the Phoenix office. The case was submitted to the Advice division to address the issue of whether the employer terminated an employee for posting inappropriate and unprofessional tweets to a work related twitter account in violation of Section 8(a)(1) of the Act. After reviewing the facts, the head of the Division recommended in a eight page memorandum that the charge should be dismissed if not withdrawn. Arizona Daily Star, Case no. 28-CA-232678 (April 21, 2011).
So how was this action reported? One web site stated that the federal labor board ruled the discharge was proper. Another site had a post that said the NLRB has held that the termination did not run afoul of the law. Yet another site announced that the NLRB has ruled that a Tucson newspaper did not violate the Act by terminating a reporter. So what is wrong with what was said?
The Division of Advice is a part of the General Counsel's office. Its function is to consider and to research novel and difficult issues and to render opinions in the form of memos to the various regional offices. These memos are not considered to be an adjudication by the NLRB.
The NLRB describes its function in deciding cases as follows on its website:
When complaints of Unfair Labor Practices issued by regional directors do not lead to settlement, they typically result in a hearing before an NLRB Administrative Law Judge. As in any court proceeding, both parties prepare arguments and present evidence, witnesses, and experts. After evaluating the evidence, the judges issue initial decisions. ALJ decisions are subject to review by the Board in Washington D.C., composed of five Members nominated by the President and confirmed by the Senate. Any or all parties can appeal by filing exceptions.
In considering an appeal, the Board reviews the case record, including all all documents produced by the regional investigation. Often a panel of three Board Members will decide a case, but the full Board usually considers novel or potentially precedent changing cases. The Board issues several hundred decisions per year.
Board decisions may be appealed to an appropriate U.S. Court of Appeals, and ultimately to the U.S. Supreme Court.
The Division's memos are not binding on either the administrative law judges or the Board itself. The reports to date of "findings" of violations have actually been either the issuance of complaints by the Regional Directors or the settlement of cases before there is any hearing at the Regional office level. Does this make a difference? Absolutely. While the current composition of the Board might be viewed more likely to support employees if presented with the issue, there has been no case decided yet by the Board after a hearing as described above. When such a decision is issued, it will be after the employer has put on its defense.