Introduction

The National Labour Relations Board (NLRB) has continued to look outside unionised workplaces to address potential violations of Section 7 of the National Labour Relations Act, which sets out the right of employees to "engage in... concerted activities for the purpose of collective bargaining or other mutual aid or protection". This update highlights several of the NLRB's latest pronouncements as they provide a window of understanding into the board's enforcement activities.

Social media in hiring

At an event in late 2014 the NLRB general counsel, an NLRB board member and the equal employment opportunity commissioner cautioned employers against researching candidates via social media. In addition to pointing out the concern that such searching might reveal a candidate's protected status, the NLRB representatives added that it might also expose the candidate's union affiliation or sympathies. They explained that if a manager knew of these protected activities or opinions, such employment decisions would be ripe for challenge by a candidate who does not receive an offer.

Second Circuit to address National Labour Relations Act and social media

At this point, it is of no surprise that employees may use social media to engage in protected Section 7 activity. In Triple Play Sports Bar and Grille (Case 34-CA-012915 and 012926, 361 NLRB 31 (August 22 2014)) the NLRB held that 'likes' on a Facebook post can be protected speech if the post concerns labour practices. However, the employer argued that the employees lost protection under the act when their likes adopted defamatory and disparaging comments regarding the employer. The board explained that Section 7 rights exercised off duty and off site are balanced against the employer's interest in preventing the disparagement of its products or services and protecting its reputation from defamation (following the standard articulated in NLRB v Electrical Workers Local 1229, 346 US 464 (1953)). Because the Triple Play employees were not disparaging the employer's products or services and the wage error that they were discussing had in fact occurred, the NLRB found that the balance fell in favour of the employees' Section 7 rights. Triple Play has filed an appeal with the Second Circuit in what will likely be the first federal court decision addressing the National Labour Relations Act in the context of social media activity.

Limit to protected activity on Facebook

Testing the outer boundaries of what constitutes Section 7 activity, the NLRB ruled in favour of an employer in Richmond District Neighborhood Center (Case 20-CA-09174, 3361 NLRB 74 (Octocber 28 2014), where employees had clearly engaged in concerted insubordination. The two employees were activity leaders at a teen after-school programme. In Facebook posts on one employee's page that were laden with profanity, the employees described their plans to execute activities without the requisite permission, subvert rules, undermine management, disregard their duties and endanger the future of the programme. The NLRB found that the employees' conduct crossed the line:

"We find the pervasive advocacy of insubordination in the Facebook posts, comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act's protection and render [the employees] unfit for further service."

The board explained that the employees' comments could not be explained away as jokes or hyperbole and the employer had a reasonable expectation that the employees would execute their plans, adding that the employer "was not obliged to wait for the employees to follow through on the misconduct they advocated".

Time to review media policies

While explored in a union context and discussed in an opinion addressing other alleged union-related violations, a San Francisco administrative law judge's recent opinion regarding an employer's news media policy should give employers in non-unionised workplaces pause. In Phillips 66 and United Steel, Paper and Forestry (Cases 31-CA-085243 and 096709) the employer's news media policy prohibited employees from providing news media with information concerning the company's "operations" and stated that it is "against company policy for anyone but an authorized company spokespersons [sic] to speak to the news media". The employer explained that the purpose of the policy was to prohibit non-designated employees from speaking on behalf of the company, but the judge found that employees would reasonably interpret the policy to forbid them from discussing the terms and conditions of their employment. Because the term 'operations' is so broad and there was no clarification regarding the employer's intent to limit communications made on behalf of the company, the judge ruled that the employer's policy violated the National Labour Relations Act.

In light of this decision, and in connection with many of the NLRB's past decisions concerning social media policies, employers should review any media communications policies to ensure that they do not fall foul of the National Labour Relations Act. However, employers can take some solace in the fact that the courts are more receptive than the NLRB to employers' arguments concerning social media and Section 7 rights.

For further information on this topic please contact Kevin B Leblang or Robert N Holtzman at Kramer Levin Naftalis & Frankel LLP by telephone (+1 212 715 9100) or email (kleblang@kramerlevin.com or rholtzman@kramerlevin.com). The Kramer Levin Naftalis & Frankel LLP website can be accessed at www.kramerlevin.com.

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