The upshot of these cases, taken together, is that concerted activity remains a relatively narrow category.
Business groups are hoping that the NLRB will go further in Cole-Rivera's case. U.S. Chamber of Commerce Labor Policy Director Michael Eastman says the board should think about whether to be more sensitive to Facebook posts than it is to what employees say around the water cooler, given the potential for publicity that could damage a company's reputation.
But that would undermine the point of the National Labor Relations Act. Workers' rights to collective action often conflict with owners' desires to control their corporate image. But the former is enshrined in law; the latter isn't. The power of social media to air criticism shouldn't change that.
The authors of the National Labor Relations Act recognized that workers have little leverage in a workplace where managers are free to weed out critics. If losing your livelihood is the cost of speaking up, then many workers won't. Concerted activity will take different forms for different workers — from going on strike, to filling a class action lawsuit (a right the NLRB protected in January), to tweeting in concert. All of those forms of activism deserve protection. Employers shouldn't have any more power to root out dissident employees online than they do elsewhere.
Josh Eidelson is a contributing writer for Salon and "In These Times." He worked as a union organizer for five years.