Seyfarth Synopsis: The NLRB orders employer to cease and desist from maintaining numerous provisions in its Social Networking Guideline and provisions in the Handbook related to social media, privacy, and confidentiality, and no solicitation on the grounds that language violated Section 8(a)(1) of the Act.

On July 15, 2016, the National Labor Relations Board (the “Board”) in Cy-Fair Volunteer Fire Department and Robert Berleth, et al., 364 NLRB No. 49 (July 15, 2016) affirmed an Administrative Law Judge’s decision that various provisions in Cy-Fair Volunteer Fire Department’s (“Cy-Fair”) Handbook and Social Networking Guideline violated Section 8(a)(1) of the Act because the language could lead an employee to reasonably believe that he/she was prohibited from organizing or engaging in concerted activity.

In determining whether a challenged rule is unlawful, the Board considered the following evidence: (1) whether employees would reasonably construe the language to prohibit Section 7 activity; (2) whether the rule was promulgated in response to union activity; or (3) whether the rule was applied to restrict the exercise of Section 7 rights.

Cy-Fair’s Social Networking Guideline Violated The Act

Cy-Fair’s Social Networking Guideline’s prohibited the use of its logos, names, pictures or accounts of activities without prior approval. In finding that Cy-Fair’s Social Networking Guideline violated the Act, the Board reasoned that employees could reasonably believe that they, or a union, were not permitted to seek support from other employees, or publicize a dispute with Cy-Fair by using its name or logo on their clothing or literature.

Provisions of Cy-Fair’s Handbook Also Violated The Act

The following provisions of Cy-Fair’s Handbook were also at issue: (1) overview; (2) essential behavioral expectations; (3) department systems; (4) blog; (5) social media; (6) proprietary information/confidentiality; (7) no solicitation/distribution policy; and (8) employee records and privacy. The Board held that some language in each of these provisions violated the Act.

Cy-Fair’s overview, essential behavioral expectations, blogging, proprietary information/confidentiality, and employee records and privacy sections attempted to protect Cy-Fair’s confidential/proprietary information and its employees’ personal information. It provided that employees would be disciplined if they shared this information without the express consent of the appropriate person/entity. The Board, however, found that these sections were unlawful because such provisions limited the scope of the information that employees could share or discuss (i.e. confidential/proprietary information and other employees’ personal information), they impeded the employees’ right to discuss terms and conditions of employment.

The Board determined that one of the three sentences in the non-solicitation/distribution policy also violated the Act. The first and second sentences of the policy prohibited solicitation/distribution of literature during work time and required that the topics discussed by off-duty employees engaging in solicitation/distribution not disturb working employees. The Board found that these sentences were lawful because the complete prohibition of solicitation/distribution was limited to “work time” and the limitation to the topics discussed was rational. The Board determined that the Union failed to satisfy its burden that there were no other means of communicating with employees. Thus, Cy-Fair’s restriction that non-employees obtain HR approval prior to soliciting or distributing literature was lawful.

The Board, however, found that third sentence prohibiting solicitation and distribution of literature in areas frequently visited by customers, or solicitations that otherwise interfered with operations, violated the Act. The Board reasoned that because the nature of Cy-Fair’s business made it unclear who its “customers” were and how it would affect its operations, employees could reasonably believe that they were prohibited from exercising their section 7 rights.

Lessons Learned

It is important to note that all of the policies that were found unlawful were in place prior to any union activity at Cy-Fair. In its analysis, the Board instead focused on whether employees would reasonably construe the above language to prohibit their Section 7 rights. Ultimately, the Board ordered that Cy-Fair cease and desist from maintaining the above mentioned provisions in its Handbook and the unlawful language in the Social Networking Guideline.

This case serves as a reminder that employers should be careful when drafting their policies and be mindful of any restrictions. It is particularly important for employers to review language in its policies that could be construed as being overbroad as it may result in less protection for the employer in the future.