Editorial: NLRB rules trapped in the past

Published Jan 24, 2013 at 04:00AM

Recent decisions by the National Labor Relations Board have given workers more freedom to gripe about work by tweeting or posting on Facebook.

“Many view social media as the new water cooler,” said Mark Pearce, the NLRB chairman, to The New York Times. “All we’re doing is applying traditional rules to a new technology.”

The NLRB may hold that view about social media. But the traditional rules can’t simply be stretched to cover new technology.

There is a whale of a difference between chatting around the water cooler at work and posting comments on the Internet for the world to see.

The precedent that forms the basis for the recent NLRB decisions was set under a 1983 case called Meyers Industries. The NLRB basically ruled in that decision that worker activity should be protected if the action was complaining about working conditions and acting in a concerted way with other employees for mutual aid and protection. It’s been applied not just to union employees but all employees.

The NLRB has made recent decisions that found hitting the “Like” button sufficient to indicate concerted action and that a series of complaints on Facebook without any plan for group action is worthy of protection.

The NLRB doesn’t allow everything. It recently permitted the firing of a reporter in Tuscon who tweeted about a slow news night: “You stay homicidal Tuscon.” In another permitted firing, there was an employee who suggested on Facebook that health care workers might “withhold care if they were personally offended by the patients.”

But the Meyers Industries decision was made 30 years ago. Technology has changed. A “virtual watercooler” that can be broadcast around the world is not the same as the contained environment of a real watercooler or a picket line.

If the NLRB’s decisions aren’t sensitive to the difference between blasting complaints out to the world through social media and more private discussions, the NLRB is not keeping up with technology. It’s backward.