A Wal-Mart Stores Inc. (WMT) worker said he was disciplined forusing Facebook to rail against a boss's “tyranny.” A crime reporterin Tucson, Arizona, was fired for using Twitter to taunt that thecity had too few homicides.

The National Labor Relations Board, which acts on unfair-laborpractices, has reviewed 129 such cases since 2009 involving socialmedia and the workplace, most filed this year, according to a studyto be released today by the U.S. Chamber of Commerce, the nation'slargest business lobbying group.

The five-member labor board and its general counsel have sidedwith employers in some cases, agreeing workers can be fired forgratuitous “griping” about the boss. In other circumstances, thegovernment has contended employees were exercising a right to speakout about workplace conditions. The NLRB risks creating a right toTwitter-bomb the boss with online insults, said Michael Eastman,who prepared the study for the Washington-based Chamber.

“The things people write on social media sites are not the mostrestrained,” Eastman, the Chamber's executive director of labor-lawpolicy, said in an interview. “Employers are concerned about wherethe board may go.”

The board has yet to set a policy on whether workers can discussthe workplace on social-media sites without reprisal, Eastman said.Workers disciplined for social-network posts say their comments areprotected under the 1935 National Labor Relations Act, which letsemployees discuss working conditions.

The number of complaints filed increased after the board said inOctober that American Medical Response of Connecticut Inc. wronglyfired an employee for criticizing her supervisor on Facebook,Eastman said. The agency's Hartford office said the comments wereprotected as part of an online discussion with fellow workers, andthe company's policy restricting online comments interfered withworkers rights.

'Overly Broad'
The ambulance companysettled in February, agreeing to revise “overly broad rules,” theagency said.

The Chamber report showed the board has also reviewedsocial-media policies at Sears Holdings Corp. (SHLD), the largestU.S. department-store chain, and complaints posted on Facebookduring union organizing at Mashantucket Pequot Gaming Enterprise,which runs the Foxwoods casino in Connecticut.

“As the use of Facebook and other social media tools increases,the NLRB has seen an increase in charges filed by employees inregional offices across the country,” Nancy Cleeland, an agencyspokeswoman, said in an e-mail.

The board has almost completed a report on social-media chargesinvestigated by the NLRB that “should provide useful insights” foremployers in crafting policies on the subject, she said.

'Water Cooler'
“Employees in the old daysgathered at the water cooler,” Marshall Babson, a partner atSeyfarth Shaw LLP in New York and Washington and a former member ofthe NLRB, said in an interview. “Social media is the 21st-centuryanalogue. Employees use this device to air grievances and solicitopinions from employees. That's why it's protected.”

The NLRB's taking up social-media cases will help protectemployee rights, Kimberly Freeman Brown, executive director ofAmerican Rights at Work, a union advocacy group based inWashington, said in an e-mail.

“Workers are already facing a severe imbalance in the economy,so it's important that protections for workers who speak up forfairness on the job keep up with the times,” she said.

The Chamber's report listed the case against Wal-Mart, theworld's largest retailer, in which a worker complained after he wasdisciplined for comments about management “tyranny” on his accountwith Facebook Inc. The NLRB general counsel's advice division sidedwith Bentonville, Arkansas-based Wal-Mart and recommended on July19 dismissing the case because the comments were “griping” and notprotected by law, the study found. The case has been closed.

'Stay Homicidal'
In a case against LeeEnterprises Inc., the police reporter at the company's ArizonaDaily Star posted complaints on Twitter Inc.'s site about hisnewspaper's headline writers and comments about crimes, such as,“You stay homicidal, Tucson,” and “What?!?!?! No overnighthomicide?” according to an April 21 memo from the NLRB. He waswarned and fired.

The publisher didn't violate law by firing the employee becausethe postings weren't related to workplace conditions or seeking toengage co-workers to talk about employment, the NLRB's legal advicedivision said.

Bobbie Jo Buel, executive editor of the Star, declined tocomment on the findings or the firing.

An NLRB office in Memphis, Tennessee, also dismissed a case onJune 30 against a Wal-Mart distribution center in Searcy, Arkansas,brought by a worker who complained of being demoted after aFacebook posting, according to the study.

Earthquake Wishes
In references to Midwestearthquakes, the employee said the building should “collapse whilecertain members of management were inside.” The NLRB determined thecomments weren't protected speech, according to the study.

“We are pleased with the outcome,” Dan Fogleman, a Wal- Martspokesman, said in an interview.

In another case cited by the Chamber, an employee at Build.comInc. said she was fired by the home improvement retailer based inChico, California, for commenting on possible labor-codeviolations, according to the study. The posting drew responses fromher Facebook followers.

Build.com offered to settle and agreed to tell employees theywouldn't be punished for posting comments about “terms andconditions of employment on their social-media pages,” according toan April agency statement quoted by the study.

Brandon Proctor, vice president of marketing at Build.com,declined to comment.

“This is absolutely a growing issue for union and non- unionalike,” Harley Shaiken, a professor at the University of Californiaat Berkeley who specializes in labor issues, said in aninterview.

The Chamber used the federal Freedom of Information Act to gaincopies of all charges, complaints and settlements related to socialmedia. The documents showed five cases resulting in settlements,according to the study.

Bloomberg News

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