Download Report

8th Annual ABA Section of Labor and Employment Law Conference
NLRA Fundamentals
Union Perspective
The National Labor Relations Act’s Impact on Work Rules
Concerning Confidentiality, Inappropriate Behavior, Disparagement,
Media Communications, and Social Media Activity.
LISA C. DEMIDOVICH
United Nurses Associations of California/
Union of Health Care Professionals,
NUHHCE, AFSCME, AFL-CIO
955 Overland Court, Suite 150
San Dimas, California 91773-1718
(909) 599-8622
[email protected]
November 6, 2014
Los Angeles, California
TABLE OF CONTENTS
Page
I.
Introduction .........................................................................................................................1
II.
Legal Standard ....................................................................................................................1
III.
Broad Confidentiality Rules Violate the NLRA .................................................................2
IV. Broad Non-Disparagement Rules Violate the NLRA .........................................................6
V.
Broad Inappropriate Behavior Rules Violate the NLRA ....................................................8
VI. Broad Media Communications Bans Violate the NLRA ....................................................10
VII. Broad Social Media Rules Restricting Coworker Discussions
Violate The NLRA ..............................................................................................................11
VIII. Conclusion ..........................................................................................................................16
i
I.
Introduction
Increased media attention has been given to the National Labor Relations Board’s
invalidation of Employer work rules when they violate the National Labor Relations Act
(“NLRA” or the “Act”). The commentary is somewhat surprising given that the test being
applied to invalidate the work rules was enunciated over a decade ago when the National Labor
Relations Board (“NLRB or the “Board”) majority consisted of Republican members widely
viewed as understanding of the management-bar perspective. Because this paper is for a
fundamentals panel, it addresses the lawfulness of common employer work rules—
confidentiality, non-disparagement, inappropriate behavior, media communications, and social
media activity—as an introductory guide for practitioners who have little or no experience
practicing before the NLRB. For practitioners with extensive experience before the NLRB, this
paper hopefully is useful in so far as it discusses the NLRB’s recent decisions concerning
employer work rules.1
II.
Legal Standard
When analyzing the lawfulness of employer work rules under the NLRA, the Board
applies the test enunciated in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). An
employer work rule is unlawful when it explicitly restricts Section 7 activities, id. at 646. Such
activities include employee efforts to improve terms and conditions of employment or otherwise
improve their lot as employees. See Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). Even if a
rule does not explicitly restrict Section 7 activities, it is unlawful if one of the following factors
1
The author would like to thank Megan Degeneffe for her valuable suggestions and excellent
research assistance on this paper.
1
can be shown: “(1) employees would reasonably construe the language to prohibit Section 7
activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights.” Lutheran Heritage, 343 NLRB at 647. If the
work rule’s restrictions could be considered ambiguous, the Board will construe any ambiguity
in the rule against the employer as the promulgator of the rule. See Lafayette Park Hotel, 326
NLRB 824, 828 (1998).
It is of no consequence that an employer has not reduced its work rule to writing. See
Philips Elecs. N. Am. Corp., 361 NLRB No. 16, slip op. at 3 (Aug. 14, 2014) (finding employer
“maintained an unwritten rule that discipline was confidential . . . and this rule violated Section
8(a)(1)”). Nor is it relevant that the rule has never been enforced because the mere presence of
overly-broad rules reasonably tends to discourage employees from engaging in Section 7 activity
that they could reasonably believe to be encompassed by the rule. See Lafayette Park Hotel, 326
NLRB at 825; see also Guardsmark, LLC v. NLRB, 475 F.3d 369, 374 (D.C. Cir. 2007)
(explaining “mere maintenance of a rule likely to chill section 7 activity, whether explicitly or
through reasonable interpretation, can amount to an unfair labor practice even absent evidence of
enforcement” (internal quotations omitted)).
III.
Broad Confidentiality Rules Violate the NLRA.
Broad confidentiality rules are unlawful if they could reasonably be interpreted by
employees as banning discussion about policies impacting terms and conditions of employment
or complaints about managers or management. See Flex Frac Logistics, 358 NLRB No. 127,
slip op. at 1, 5 (2012); Hyundai Am. Shipping, 357 NLRB No. 80, slip op. at 1, 12 (2011). In
MCPC, Inc., 360 NLRB No. 39, slip op. at 1 (Feb. 6, 2014), the Board unanimously ruled that a
2
technology products and services provider violated the Act by maintaining a confidentiality rule
prohibiting employees from dissemination of “personal or financial information, etc.” because
such a rule would chill employees from discussing their wages or other terms and condition of
employment with coworkers.
The Board has long held that Section 7 protects the rights of employees to discuss
discipline or disciplinary investigations involving fellow employees. See Lucky Cab Co., 360
NLRB No. 43, slip op. at 7 (Feb. 20, 2014) (finding an employer violated the Act when it told a
discharged employee “not to speak to anyone as she left [the] property”); Westside Cmty. Mental
Health Ctr., Inc., 327 NLRB 661, 666 (1999) (finding unlawful an instruction to not discuss a
suspension, but “just to go back and do [the] job as though nothing happened”); accord Fresh &
Easy Neighborhood Mkt., 356 NLRB No. 90, slip op. at 7 (2011) (explaining “an employee has a
right protected by Section 7 of the Act to talk about discipline that he or she has received from
their employer with other employees . . . . because the discussions may become the basis for
collective action by employees to respond to discipline perceived to be unfair to the
employees”); Verizon Wireless, 349 NLRB 640, 658-59 (2007); Phoenix Transit Sys., 337 NLRB
510, 510, 514 (2002) (finding violative a rule prohibiting employees from discussing sexual
harassment complaints with other employees); Caesar’s Palace, 336 NLRB 271, 272 (2001);
Mobil Oil Exploration & Producing, 325 NLRB 176, 178-79 (1997).
In Inova Health System, 360 NLRB No. 135, slip op. at 6-7 (June 30, 2014), a unanimous
panel of the Board recently adopted the Administrative Law Judge’s (“ALJ”) finding that the
employer violated NLRA Section 8(a)(1) when it told a suspended employee that she could not
discuss her discipline with anyone except her husband. But see Fresh & Easy Neighborhood
Mkt., 361 NLRB No. 12, slip op. at 8 (Aug. 11, 2014) (upholding an employer instruction that an
3
employee cease obtaining witness statements regarding her sexual harassment complaint to
maintain the integrity of the investigation where employee had added to statement already signed
by witnesses and the employer acknowledged to her that she could discuss the pending
investigation with coworkers and ask them to be witnesses for her).
In Fresh & Easy Neighborhood Market, 361 NLRB No. 8, slip op. at 1 (July 31, 2014),
the Board considered a confidentiality policy which stated in pertinent part:
CONFIDENTIALITY AND DATA PROTECTION
We have an important duty to our customers and our employees to respect the
information we hold about them and ensure it is protected and handled
responsibly. The trust of our staff and customers is very important, so we take our
obligations under relevant data protection and privacy laws very seriously. We
should also regard all information concerning our business as an asset, which, like
other important assets, has a value and needs to be suitably protected.
What does it mean for me?
DO
• Make sure any customer or staff information you collect, is relevant, accurate
and, where necessary, kept up to date. Keep it for no longer than necessary.
• Keep customer and employee information secure. Information must be used
fairly, lawfully and only for the purpose for which it was obtained.
• Ensure that data is appropriately and securely stored and disposed of. Be aware
of the risk of discussing confidential information in public places.
DON'T
• Release information, without making sure that the person you are providing it to
is rightfully allowed to receive it and, where necessary, that it has been encrypted
in accordance with Fresh & Easy policy.
Id.
Reversing the ALJ, the Board majority found the rule unlawful because “employees
would reasonably construe the admonition to keep employee information secure to prohibit
discussion and disclosure of information about other employees, such as wages and terms and
conditions of employment.” Id. at 2 (citing Cintas Corp., 344 NLRB 943, 943 (2005) (The
4
Board found unlawful a confidentiality policy stating: “We honor confidentiality. We recognize
and protect the confidentiality of any information concerning the company, its business plans, its
partners, new business efforts, customers, accounting and financial matters.”); Flamingo HiltonLaughlin, 330 NLRB 287, 288 (1999)). The Board further explained “the instruction to use
information ‘only for the purpose for which it was obtained’ reinforces the impression that the
rule prohibits Section 7 activity, as the [employer]’s business purpose clearly does not include
protected discussion of wages or working conditions with fellow employees, union
representatives, or Board agents.” Id. The Board rejected the argument that the rule’s placement
in a “Code of Business Conduct” instead of an employee handbook rendered the rule lawful
because “the Code informs employees of established rules and policies that govern the day-today handling of their work duties and may subject them to disciplinary action for
noncompliance.” Id.
The Board distinguished this confidentiality policy from others with “language limiting
the types of employee information that employees may not disclose.” Id. at 2-3. In Mediaone of
Greater Florida, Inc., 340 NLRB 277, 278-79 (2003), the employer’s handbook “Proprietary
Information” rule was found to be lawful where it was located in the section prohibiting the
unauthorized use of “company and third party proprietary information, including information
assets and intellectual property” and contained a detailed list of materials prohibited from
disclosure such as “business plans,” “copyrighted works,” “trade secrets,” and “patents.” In
Community Hospitals of Central California v. NLRB, 335 F.3d 1079, 1089 (D.C. Cir. 2003), the
U.S. Court of Appeals for the D.C. Circuit disagreed with the NLRB regarding an employer
confidentiality rule, finding instead the rule lawful where it was limited to the “[r]elease or
5
disclosure of confidential information concerning patients or employees,” and not all employee
information.
IV.
Broad Non-Disparagement Rules Violate the NLRA.
Policies that broadly prohibit employees from disparaging or defaming the company have
been found to violate the NLRA. See Dish Network Corp., 359 NLRB No. 108, slip op. at 1 &
n.1., 7-8 (2013). In Hills & Dales General Hospital, 360 NLRB No. 70, slip op. at 5 (Apr. 1,
2014), the Board reviewed the employer’s Values and Standards of Behavior Policy stating:
“We will not engage in or listen to negativity or gossip. We will recognize that listening without
acting to stop it is the same as participating.” The Board was split on whether the policy would
have been lawful had it been limited to only prohibiting gossip, but all members agreed that it
was unlawful in that it prohibited employees from engaging in or listening to negativity. Id. at 1
& n.3.
In Laurus Technical Institute, 360 NLRB No. 133, slip op. at 1 (June 13, 2014), the
Board adopted the ALJ’s finding that the employer’s “No Gossip Policy” violated the Act.
Specifically, the definition of “gossip” was found to be unlawfully overbroad in that it banned
discussion about another’s personal life when they are not present or any “[n]egative . . . or
disparaging comments or criticisms of another person or persons.” Id. at 5, 9. The Board
adopted the ALJ’s decision, which explained: “A thorough reading of this vague, overly-broad
policy reveals that it narrowly prohibits virtually all communications about anyone, including the
company or its managers,” and it far exceeds the rule banning “‘false, vicious, profane, or
malicious statements’ toward or concerning the employer or its employees found to be unlawful
in Lafayette Park Hotel.” Id. at 1, 9.
6
The Board has applied the Act’s protection to non-disparagement clauses in severance
agreements. In Pratt (Corrugated Logistics), LLC, 360 NLRB No. 48, slip op. at 13 (Feb. 21,
2014), a layoff severance agreement would provide severance pay if employees agreed to refrain
from engaging in conduct that “disparages, criticizes . . . or otherwise casts a negative
characterization upon . . . any [company] Entity . . . [or] . . . encourage or assist anyone else to do
so.” The Board adopted the ALJ’s finding that the provision was unlawfully broad because it
prohibited “employees from engaging in activity protected by Section 7 of the Act, including
taking concerted action with fellow employees, or even talking to them, union representatives, or
agents of the National Labor Relations Board with respect to the agreement.” Id. at 1 n.1 & 13.
By contrast, in Heartland Catfish Co., 358 NLRB No. 125, slip op. at 7 (2012), the Board
affirmed the ALJ’s finding that a “Common Sense” rule was lawful where it provided:
We are all expected to act as responsible adults and to treat each other and
the company with fairness and respect. Therefore it should go without saying that
things such as abusive, indecent or dishonest conduct; horseplay, gambling or
other illegal conduct; fighting or provoking a fight; assaulting or threatening
violence; using obscene or abusive language toward another person; and/or
making disparaging remarks about the company are strictly prohibited.
Id. at 1 & 4. The Board adopted the ALJ’s reasoning that the rule was unaccompanied by a
specific penalty, it appeared in the handbook “after a no-smoking rule and a no-drug, no-drinking
rule,” and “it covers horseplay, threatening violence, and using obscene or abusive language”
without reference “to protected activity or labor disputes” so that the disparaging comments rule
“may reasonably read as focusing on unprotected rather than protected conduct.” Id. at 7.
In Hyundai America Shipping Agency, Inc., 357 NLRB No. 80, slip op. at 2 (Aug. 26,
2011), the Board—contrary to the ALJ—upheld employee handbook rules that threaten
employees with disciplinary action for: (1) “indulging in harmful gossip” and (2) “exhibiting a
negative attitude toward or losing interest in your work assignment.” The Board parsed out what
7
made the rules lawful, while similar gossip and negativity rules have been found unlawful, as
follows:
In Claremont Resort & Spa and Hotel, 344 NLRB 832, 832 (2005), cited
by the judge, the Board found that a rule prohibiting “negative conversations
about associates and/or managers” violated Section 8(a)(1). The Board found that
employees would reasonably construe the prohibition to bar them from discussing
concerns about their managers that affect working conditions, which would
thereby cause them to refrain from engaging in protected activities. Id.
Unlike the rule at issue in Claremont Resort, however, the [employer]’s
“harmful gossip” rule does not mention managers. Moreover, although the rule in
Claremont Resort dealt with employee conversations generally, which would
implicitly include protected concerted activity, the Respondent's rule merely
prohibits gossip, which Merriam-Webster's Collegiate Dictionary (10th ed. 1999)
defines as “rumor or report of an intimate nature” or “chatty talk.” Given all of the
circumstances, we find that employees would not reasonably construe the
Respondent's rule against “indulging in harmful gossip” to prohibit Section 7
activity.
. . . [R]egarding the rule against “exhibiting negative attitude,” . . . the
Respondent's rule prohibits “exhibiting a negative attitude toward or losing
interest in your work assignment.” Moreover, the rule in Claremont Resort
expressly encompassed concerted activity by proscribing “conversation” in
contrast to the rule at issue here. That distinction is further emphasized by the
instant rule's application only to displaying a negative attitude toward or losing
interest in “your work assignment” (singular). In our view, the wording of the
Respondent's rule is thus significantly less likely to be construed by employees as
prohibiting concerted, protected activity. In the absence of any evidence that the
Respondent ever applied the rule to protected activity, we find that it did not
violate Section 8(a)(1).
Id. at 2-3 (emphasis omitted).
V.
Broad Inappropriate Behavior Rules Violate the NLRA.
Rules prohibiting employees from engaging in inappropriate behavior while on Company
property have been found to violate the NLRA. See Hitachi Capital Am. Corp., 361 NLRB No.
19, slip op. at 2-3 (Aug. 8, 2014). A rule that prohibits “[d]iscourteous or inappropriate attitude
or behavior to passengers, other employees, or members of the public [and d]isorderly conduct
8
during working hours” was found to be unlawfully broad because employees “would reasonably
construe the rule as limiting their communications concerning employment.” First Transit, Inc.,
360 NLRB No. 72, slip op. at 2-3 (Apr. 2, 2014) (internal quotations omitted). By contrast, the
Board found the rule to be lawful in so far as it prohibited “[p]rofane or abusive language where
the language used is uncivil, insulting, contemptuous, vicious, or malicious” because it would be
construed by reasonable employees “as merely requiring that they comport themselves with
general notions of civility and decorum.” Id. at 3 (internal quotations omitted).
In Hills & Dales, supra, 360 NLRB No. 70, slip op. at 1, the Board reversed the ALJ, and
instead found unlawful the employer’s policy that employees “represent [the employer] in the
community in a positive and professional manner in every opportunity.” The Board explained it
was of particular importance that this rule was contained with two other rules found to be
unlawful:
[I]n context with these other unlawful paragraphs, employees would reasonably
view the language [] as proscribing them from engaging in any public activity or
making any public statements (i.e., “in the community”) that are not perceived as
“positive” towards the Respondent on work-related matters. This would, for
example, discourage employees from engaging in protected public protests of
unfair labor practices, or from making statements to third parties protesting their
terms and conditions of employment—activity that may not be “positive” towards
the Respondent but is clearly protected by Section 7.
Id. at 2.
Also of note, the Board rejected the employer’s “argument that the evidence of employee
involvement in developing the rules removes any impermissible ambiguity as to the meaning and
purpose of the[ rules].” The Board explained its rejection of the employee-involvement defense:
As a general matter, such employee involvement is no guarantee that work rules
will not infringe on Section 7 rights; employees might well endorse an unlawful
rule, knowingly or not, but their consent or acquiescence cannot validate the rule.
Here, in any case, the record is unclear as to the extent of employee involvement.
9
There is no evidence that any employees who may have been involved in creating
the subject work rules were assured or reasonably believed that the final adopted
versions would not interfere with the exercise of protected Section 7 rights. Nor
would the prior involvement of some employees have determined how other
employees reasonably construed the rules, even if they were fully informed of the
rules’ origins.
Id. at 1-2.
VI.
Broad Media Communications Bans Violate the NLRA.
The Board has consistently found employer work rules banning employees from
communicating with the media to be overbroad and unlawful. See HTH Corp., 356 NLRB No.
182, slip op. at 2 & 25 (2011), enfd. 693 F.3d 1051 (9th Cir. 2012); Trump Marina Casino
Resort, 355 NLRB 585 (2010) (incorporating by reference 354 NLRB 1027, 1027 n.2 (2009)),
enfd. 435 Fed. Appx. 1 (D.C. Cir. 2011); Leather Ctr., Inc., 312 NLRB 521, 521 n.4, 525, 528
(1993). This is because Section 7 protects employee communications about labor disputes with
the media. See Valley Hosp. Med. Ctr., 351 NLRB 1250, 1252 (2007), enforced sub nom.
Nevada Serv. Emps. Union, Local 1107 v. NLRB, 358 Fed. Appx. 783 (9th Cir. 2009); Hacienda
de Salud-Espanola, 317 NLRB 962, 966 (1995). In Food Services of America, Inc., 360 NLRB
No. 123, slip op. at 1 & 10 (May 30, 2014), the Board adopted the ALJ’s finding that a media
rule was unlawful, where the rule prohibited unauthorized disclosure of company information to
“the press and news media in general and trade journals and industry groups in particular.”
In DirectTV, 359 NLRB No. 54, slip op. at 1 & n.4 (2013), the Board considered a rule
that stated in pertinent part: “To ensure the company presents a united, consistent voice to a
variety of audiences, these are some of your responsibilities related to communications . . . . Do
not contact the media, and direct all media inquiries to the Home Services Communications
department. . . .” The Board found this rule was unlawful for two reasons. First, because the
10
rule prohibited employees from contacting the media, “[e]mployees would reasonably construe
the unequivocal language in the [employer]’s rule as prohibiting any and all such protected
communications to the media regarding a labor dispute.” Id. at 1. The Board found it
“significant that the rule makes no attempt to distinguish unprotected communications, such as
statements that are maliciously false, from those that are protected.” Id. Second, the employer’s
“preapproval requirement expressly covers any contact with the media, and thus would
reasonably lead employees to conclude that it applies to protected communications concerning
labor disputes.” Id. at 2.
VII.
Broad Social Media Rules Restricting Coworker Discussions Violate the NLRA.
Employers have started enacting social media policies covering on- and off-the-clock
conduct. These social media policies tend to overlap with the above concepts of confidentiality,
non-disparagement and communicating with the media. The most comprehensive discussion of
social media policies is found in the former Acting General Counsel Lafe Solomon’s Advice
Memorandum, OM 12-59 (May 30, 2012). The Report of the Acting General Counsel
concerning Social Media Cases quotes directly from actual social media policies and identifies
provisions believed to be lawful and unlawful.
One lawful social media policy quoted was:
Use your best judgment and exercise personal responsibility. Take your
responsibility as stewards of personal information to heart. Integrity,
Accountability and Respect are core [Employer] values. As a company,
[Employer] trusts—and expects—you to exercise personal responsibility
whenever you participate in social media or other online activities. . . . If you’re
about to publish, respond or engage in something that makes you even the
slightest bit uncomfortable, don’t do it.
11
Compare id. at 11 (portion identified as “potentially problematic” omitted) with Costco
Wholesale Corp., 358 NLRB No. 106, slip op. at 1-3 (2012) (finding unlawful a rule stating:
“Any communication transmitted, stored or displayed electronically must comply with the
policies outlined in the [Employer] Employee Agreement. Employees should be aware that
statements posted electronically (such as [to] online message boards or discussion groups) that
damage the Company, defame any individual or damage any person's reputation, or violate the
policies outlined in the [Employer] Employee Agreement, may be subject to discipline, up to and
including termination of employment.”).
The Report identifies two specific restrictions to online posts believed to be lawful. First,
a restriction that “any harassment, bullying, discrimination, or retaliation that would not be
permissible in the workplace is not permissible between co-workers online, even if it is done
after hours, from home and on home computers” was found lawful because “this provision
would not reasonably be construed to apply to Section 7 activity because the rule contains a list
of plainly egregious conduct, such as bullying and discrimination.” Id. at 12-14. Second, a
restriction that “Users may not post anything on the Internet in the name of [Employer] or in a
manner that could reasonably be attributed to [Employer] without prior written authorization
from the President or the President’s designated agent” would be lawful because requiring an
employee to “receive prior authorization before posting a message that is either in the
Employer’s name or could reasonably be attributed to the Employer cannot reasonably be
construed to restrict employees’ exercise of their Section 7 right to communicate about working
conditions among themselves and with third parties.” Id. at 15.2
2
The Report concludes with a detailed example of a social media policy believed to be lawful.
Id. at 22-24.
12
The Report also considered the effect of an Employer’s savings clause. The provision
under consideration stated: “This Policy will not be construed or applied in a manner that
improperly interferes with employees’ rights under the National Labor Relations Act.” Id. at 12.
The Report explained: “[T]his clause does not cure the otherwise unlawful provisions of the
Employer’s social media policy because employees would not understand from this disclaimer
that protected activities are in fact permitted.” Id.
The Board recently reviewed an employer social media policy in what has become
known as the Facebook “Like” case, Triple Play Sports Bar, 361 NLRB No. 31 (Aug. 22, 2014),
where a petition for review is pending in the U.S. Court of Appeals. The employee handbook
social media policy was entitled “Internet/Blogging policy” and provided:
The Company supports the free exchange of information and supports
camaraderie among its employees. However, when internet blogging, chat room
discussions, e-mail, text messages, or other forms of communication extend to
employees revealing confidential and proprietary information about the Company,
or engaging in inappropriate discussions about the company, management, and/or
co-workers, the employee may be violating the law and is subject to disciplinary
action, up to and including termination of employment. Please keep in mind that
if you communicate regarding any aspect of the Company, you must include a
disclaimer that the views you share are yours, and not necessarily the views of the
Company. In the event state or federal law precludes this policy, then it is of no
force or effect.
Id., slip op. at 6.
As with the other types of work rules, the Board analyzed the internet policy under
Lutheran Heritage, 343 NLRB at 647. The Board majority, over a dissent by Member
Miscimarra on this lone issue, found the policy to be unlawful, explaining:
[W]e believe that employees would reasonably interpret the Respondent's rule as
proscribing any discussions about their terms and conditions of employment
deemed “inappropriate” by the Respondent. The rule contains only one other
prohibition--against revealing confidential information--and provides no
illustrative examples to employees of what the Respondent considers to be
13
inappropriate. Under these circumstances, we find the term “inappropriate” to be
“sufficiently imprecise” that employees would reasonably understand it to
encompass “discussions and interactions protected by Section 7.
Id. at *7 (citing First Transit, Inc., supra, 360 NLRB No. 72, slip. op. at 3). The Board majority
further stated that the employer “provided employees with an authoritative indication of the
scope of its prohibition against inappropriate discussions and that they should construe its rule
against inappropriate discussions to include such protected activity” when it unlawfully
discharged two employees for participating in a Facebook discussion about the company and its
owners. Id. Finally, the Board ruled that the policy’s “general savings clause stating that the
policy ‘is of no force or effect’ if ‘state or federal law precludes [it]’ did not save the policy
because “the two unlawful discharges served as an indication to employees that the clause did
not shield [the two unlawfully discharged employee’s] protected activity,” so “[f]aced with these
discharges, employees therefore would reasonably construe the Internet/Blogging policy to
prohibit Section 7 activity such as the Facebook discussion of tax withholding issues involved in
this case.” Id.
In DirectTV, supra, 359 NLRB No. 54, slip op. at 3, the Board analyzed the interplay of
the company’s handbook policy regarding confidentiality with a policy entitled “Employees”
that prohibited disclosing information on the internet: “Employees may not blog, enter chat
rooms, post messages on public websites or otherwise disclose company information that is not
already disclosed as a public record.” The Board explained the unlawfulness once the policies
are read together:
Employees who read the two policies in tandem would understand the intranet
policy to prohibit disclosure of “employee records,” which would include
information concerning their own or fellow employees' wages, discipline, and
performance ratings. At the very least, the scope of “company information” in the
intranet policy is ambiguous in light of the handbook provision, and the Board has
14
recognized that “employees should not have to decide at their own peril what
information is not lawfully subject to such a prohibition.
Id. (citations omitted).
In Durham School Services, 360 NLRB No. 85, slip op. at 1 n.5 & 11-12 (Apr. 25, 2014),
the Board adopted the ALJ’s opinion finding the employee handbook “Social Networking
Policy,” restricting with whom the employees could connect on social media and the comments
that could be made, was unlawful. The policy states that, “It is also recommended that the
employees . . . limit contact with parents or school officials, and keep all contact appropriate.
Inappropriate communication with students, parents, or school representatives will be grounds
for immediate dismissal.” Id. at 11. Later, the policy states that, “communication with
coworkers should be kept professional and respectful, even outside of work hours.” Id. The ALJ
explained the unlawfulness of these provisions as follows:
Advising employees to “limit contact with parents or school officials,” and to
“keep all contact appropriate,” as well as saying that “communication with
coworkers should be kept professional and respectful, even outside work hours,”
and warning that “employees who publicly share unfavorable . . . information
related to the company or any of its employees or customers . . . may be subject to
investigation and possibly discipline” without indicating what the Employer
considers appropriate or inappropriate conduct, or what is considered professional
and respectful, or what constitutes unfavorable information is, in my view,
unreasonably broad and vague. Employees could reasonably interpret this policy
language as restraining them in their Section 7 right to communicate freely with
fellow employees and others regarding work issues and for their mutual aid and
protection.
Id. at 12.
In Dish Network Corp., 359 NLRB No. 108, slip op. at 7 (2013), the Board reviewed a
social media policy governing blogs, forums, wikis, social and professional networks, stating in
pertinent part that employees “may not make disparaging or defamatory comments about DISH
15
Network, its employees, officers, directors, vendors, customers, partners, affiliates or our, or
their, products/services. . . . Unless [] specifically authorized to do so, [employees] may not . . . .
[p]articipate in these activities with DISH Network resources and/or on Company time.” Finding
this policy unlawful, the Board relied on well-established precedent finding equivalent rules,
which ban union activities during “Company time” as presumptively invalid because they fail to
clearly convey that solicitation can still occur during breaks and other nonworking hours at the
enterprise. Id. at 8 (citing Hyundai Am. Shipping Agency, 357 NLRB No. 80 (2011); Laidlaw
Transit, Inc., 315 NLRB 79, 82 (1994); Norris/O'Bannon, 307 NLRB 1236, 1245 (1992)).
VIII. Conclusion
The common remedy ordered for unlawful work rules is to cease and desist from
maintaining the rule, revise or rescind the rule, furnish all current employees with a lawful
policy, and post a notice for 60 consecutive days “where notices to employees are customarily
posted,” including the intranet and by email if the employer “customarily communicates with its
employees by such means.” See, e.g., id. at 9. Given the relatively inexpensive remedy, it is
surprising that more cases are not settled before they are considered by the NLRB, but there is no
indication that a decline in employer work rule cases is likely to occur in the near future.
16