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EMPL O Y E E ' S R I GH T S medium or channel of distribution for information." Employees always have had the right, under the statute, to talk among them- selves about terms and conditions of employment, Nagle said, including what managers they like or don't like, and their objections to certain management practices. Employees also have the right to distribute literature in non-work areas at non-work times on those subjects, he added. Employees also have the right to walk around with a picket sign expressing displeasure about their employer, Nagle said. "These are rights that probably a large majority of employ- ees are not aware that they have," Nagle said. "The Facebook case was just an extension of existing legal princi- ples to a new medium," he said, "but it was shocking for employers because with social media employees can reach a much wider audi- ence" than they could by distributing leaflets or picketing. Although the so-called "Facebook" case was later settled, Nagle called the board's action in that case a "game changer from the standpoint of an employer who is careful about his reputa- tion and wants to protect his reputation among the public." If employees are "trashing" certain aspects of their employ- ment on Facebook and Twitter "there's a much greater likelihood that the employer's customers and business partners are going to see it and be concerned about it," Nagle said. Employers have the right to tell their side of the story, but typically they "aren't interested in waging a public relations battle with their employees," Nagle said. "Employers would prefer that the argument never occur," Nagle said, or that it be hashed out in-house. Employers would do well to familiarize themselves with the fundamentals of the NLRA, Nagle said. "I think a lot of employers routinely violate the National Labor Relations Act without even knowing it," he said. "I've reviewed any number of employer handbooks that have policies that say employees may not discuss their wages with one another." The fact is, employees have the right to do just that, Nagle said. Human resources professionals and outside counsel should add certain items to their checklist when reviewing the planned dis- charge of an employee or employees, Nagle advised. A key general question is: Was the person engaged in legally protected activity? Nagle said protected activity under the statute includes: complaining about being paid wrongly; complaining about sexual harassment; and talking about forming a union. (For more details, visit the NLRB website.) "Lots of companies' handbooks have rules that don't comply with the NLRA, and if you terminate or discipline an employee for violating [such rules] that action is fruit of the poisonous tree," Nagle said. "You open yourself up to legal liability." Employers today typically know they can't discriminate based on age, race and gender, but some are nonplussed to find out that they can be disparaged or mocked, with impu- nity, by their own employees. "They have the right to disparage you publicly," Nagle said of ATTORNEY: IF ROMNEY WINS, NLRB WOULD CHANGE If Republican presidential candidate Mitt Romney wins the presidential election in November, the makeup of the National Labor Relations Board would change, and so, probably, would its stance toward employee rights and organized labor, said a labor law expert. There are currently three Democrats and one sitting Republican (Brian Hayes) on the National Labor Relations Board. Normally there are five on the board, but G.O.P. board member Terence F. Flynn resigned in May after the board's inspector general found that Flynn leaked documents to G.O.P. allies, according to news reports. His seat is currently vacant. "The partisan makeup of the board is very significant," said Robert Nagle, a lawyer and management advocate who represents employers in cases before the board. The Democrat appointees now serving "are very supportive of organized labor's agenda," he said. The current board interprets the act broadly, Nagle said, "in a way that maximizes employees' rights and union rights under the statute at the expense of employers' rights. That's been manifested in decisions that tend to favor the interests of employees." A victory by Romney could affect the makeup of the board, Nagle said, because the president appoints the board's mem- bers. Each president has always appointed three from his party and two from the opposition party, Nagle said. Terms are five years and appointments, with Senate consent, are staggered so that one member's term expires each year. If Romney wins, Nagle said, "he will have an opportunity to alter the partisan makeup of this board. It would be expected that his appointees would be more friendly to management/employ- ers and less friendly to unions than the current board is." The president also appoints the board's general counsel, Nagel pointed out. The current general counsel believes that the statute should be interpreted broadly," Nagle said, and "uses his position as a bully pulpit for workers' rights under the statute." l FON employees. He described a hypothetical example of an employee distributing leaflets that lampoon the owner of a business as someone carrying big bags of money and puffing a cigar, and accusing him of "screwing the workers." Nagle said, "If you're the owner your natural reaction might be, 'I'm gonna fire that SOB.' Well, guess what? That would prob- ably be unlawful." l FON www.fueloilnews.com | FUEL OIL NEWS | OCTOBER 2012 27