A recently released Advice Memorandum reveals yet another employment policy struck down by the National Labor Relations Board.
Last March, Barry Kearney, associate general counsel of the Board, opined on two issues relating to a social media policy implemented by Giant Food LLC. First, he determined that Giant Food breached its collective bargaining agreements with multiple unions by unilaterally implementing the policy. Second, multiple portions of the policy violated the National Labor Relations Act, he concluded.
Two sections of the policy caught the eye of the NLRB. First, the guidelines stated that employees “have an obligation to protect confidential, non-public information to which you have access in the course of your work. Do not disclose, either externally or to any unauthorized associate any confidential information about the Company or any related companies.”
The Board also expressed concern about a second provision, which stated: “Do not use any Company logo, trademark, or graphics, which are proprietary to the Company, or photographs or video of the Company’s premises, processes, operations, or products, which includes confidential information owned by the Company.”
While the rules did not expressly restrict the exercise of Section 7 rights, the Board said employees would reasonably construe the language to restrict protected activities.
The “non-public information” provision “is so vague that employees would reasonably construe it to include subjects that involve their working conditions,” Kearney wrote. Similarly, without limiting language, the term “confidential information” would “reasonably be interpreted to include information concerning terms and conditions of employment. Thus, employees would reasonably construe these prohibitions to restrict their Section 7 right to discuss terms and conditions of employment.”
Turning to the use of trademarks and logos, the Memorandum said employees would believe the language prohibited the use of such images for Section 7 communications like electronic leaflets, cartoons, or even photos of picket signs containing the employer’s logo. “Although the Employer has a proprietary interest in its trademarks, including its logo if trademarked, employees’ use of its name, logo, or other trademark while engaging in Section 7 activity would not infringe on that interest,” the Board said.
The interests protected by trademark law – like not misleading the public about the source of products offered for sale – “are not remotely implicated by employees’ non-commercial use of a name, logo, or other trademark to identify the Employer in the course of engaging in Section 7 activity related to their working conditions,” according to the Memorandum.
The prohibition on photographing or videotaping the employer’s premises was also unlawful, the Board wrote, because employees could reasonably believe they would not be allowed to communicate and share information about protected activity like pictures or videos of employees engaged in picketing.
However, the Memorandum found some portions of the policy were properly limited.
A provision that instructed employees not to “defame or otherwise discredit the Company’s products or services” was lawful because such conduct is not protected under Section 7. And a section encouraging employees to “Speak up if you believe that anyone is violating these guidelines or misusing a Company-sponsored site” would also pass muster absent the other, unlawful provisions.
The Advice Memorandum concluded by recommending that the NLRB Regional Director should issue a complaint against Giant Food. Although the policy contained a savings clause, it did not cure the otherwise unlawful policy provisions, the Board determined. “An employer may not prohibit specific employee activity protected by the Act and then escape the consequences of the prohibition by a general reference to rights protected by the Act,” Kearney wrote. “[W]ith regard to overbroad prohibitions that reasonably would be interpreted to prohibit protected activities, a general disclaimer is insufficient where employees would not understand from the disclaimer that protected activities are in fact permitted.”
To read the NLRB’s Advice Memorandum to Giant Food LLC, click here.
Why it matters: The Board noted that employers should avoid rules that are ambiguous as to their application to Section 7 activity and lack limiting language or context. “In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity, are not unlawful,” according to the Memorandum. Employers hoping to avoid the Board’s increasing scrutiny of employment policies should take the hint and craft a policy that addresses Section 7 activity, accompanied by clear examples.