April rulings bring May muddling’ might be a better way to tweet recent social media decisions at the National Labor Relations Board (NLRB) given the Board’s ruling in Durham School Services (April 25, 2014) and an Administrative Law Judge’s (ALJ) opinion in Kroger Co. of Michigan (April 21, 2014).  Together, these two decisions show that the NLRB remains focused on social media policies and their implications for employee section 7 rights under the National Labor Relations Act (Act).

Kroger Co.: ALJ Flaunts NLRB General Counsel Guidance Memorandum

In Kroger Co., an ALJ found portions of a handbook disseminated to employees to violate employees’ section 7 rights because they reasonably tended to chill employees in the exercise of their Section 7 rights.  Specifically, the ALJ found that:

• Requiring a disclaimer whenever the employee spoke on “work-related” issues online even in their personal capacity “unduly burden[s]” legitimate section 7 communications and was broader than employer’s interest in not having employee’s speech be confused with employer-sanctioned speech.

  • This was directly contrary to a GC Memorandum OM 12-59 (May 30, 2012), which concluded that the requirement that “employees must expressly state their postings are ‘my own and do not represent [Employer’s positions, strategies or opinions’ is not unlawful.”  The ALJ stated that the GC Memorandum was “without precedential value” and it was “not persuasive to the extent such a disclaimer would apply to every online communication by an employee which concerns ‘work-related’ information and as to which the employee is identifiable as an employee for the Employer.” 

• Prohibiting employee’s use of employer’s intellectual property (IP) without employer’s permission was an overbroad restriction.

  • The Employer unsuccessfully relied on McKesson Corp., Case 0-066504, NLRB Advice Memo, Mar. 1, 2012, where the General Counsel approved language requiring employees to “Respect all copyright and other intellectual property laws,” including the company’s own copyrights, trademarks, and brands.  The ALJ viewed the McKesson Advice Memo as persuasive, even if not binding, but not germane to the rule at issue.  The ALJ found that whereas the policy in McKesson was driven by compliance with IP lawgenerally, the Kroger policy was focused only on “not using Kroger’s logos, banners, etc., under any unapproved circumstances, many of which would not violate intellectual property law.”

• Restriction on employee speech concerning rumors, speculation and either personnel matters and/or the Employer’s business plans are prohibited under the Act.

  • The ALJ found that this restriction on speech was overly broad because it would be reasonably understood by employees to cover a range of issues on which employees have a right to speak, including transfers of employees, potential shutdowns, closures, layoffs, transfer of work, wages and other terms and conditions of employment with nonemployees (e.g. union representatives).   The ALJ stated that his opinion was consistent with Hyundai American Shipping Agency, Inc., 357 NLRB No. 80 (2011), where a rule prohibiting “harmful gossip” about managers was upheld, because here “rumors and speculation” was problematically tied to “business plans” and, furthermore, that false speech alone cannot be prohibited under the Act.   The ALJ read terms such as “personnel matters” and “business plans,” which were “not defined, limited, clarified, or even mentioned” in the other parts of the provision, to reasonably be construed as examples of confidential information, which would be a violation of the Act as the overbroad policy would deter employees from communicating about personnel issues or business plans that affected their rights under the Act.

• Barring behavior “inappropriate at work…and that will that will reflect a negative or inaccurate depiction of our Company” is an overbroad restriction.

  • The ALJ noted that negative (or inaccurate) descriptions could include Section 7 protected activities, such as criticizing Employer’s “treatment of employees, and other issues related to wages, hours, and terms of condition.”  The ALJ noted that “inappropriate” here was defined as “disparaging,” which could involve protected activity under the Act.  However, if defined as “offensive, demeaning, [and] abusive,” this would be the very definition of harassment under federal and state law and would have otherwise been upheld based on Board precedent.

• Discipline for violating terms of the social media policy is not an independent violation of the Act because it is merely derivative.

  • The ALJ rejected the GC’s argument that a policy threatening discipline for violating terms of the social media policy was an independent violation of the Act. 

The ALJ decision introduces even more nuance for employers to consider in crafting their social media policies.  The decision also calls into question the utility of previous GC Memoranda on social media policies, which have provided much of the guidance for employers in drafting social media policies compliant with the Act.  

Durham School Services:  Employee Access to NLRB Decision

For the first time, in Durham School Services, the results of a representation election were set aside partly as a result of the social media policy in an employer’s handbook.   Employees were advised to “limit contact with parents or school officials,” “keep all contact appropriate…professional and respectful,” and further warned against “publicly shar[ing] unfavorable information.”  The ALJ found that the social media policy was overbroad and vague, tending to chill employees’ exercise of section 7 rights because they did not define what might constitute these prohibitions.  Three of the five Board members supported the ALJ’s ruling in this regard, whereas the other two members neither reached nor joined in the findings of the majority with respect to the social media policy.  Rather, Members Miscimarra and Johnson based their support of rerunning the election solely on the basis of  the unlawful discharge of a pro-union employee. 

In the decision the Board also unanimously adopted a new policy of adding hyperlinks to the underlying decision as part of the notice to be posted by the employer.  This means that employees can either use a smartphone QR code reader or type in the URL into a web browser to access the underlying decision, in addition to requesting a copy by mail or telephone from the Executive Secretary.

Takeaway

These new decisions on social media demonstrate that the NLRB’s involvement in social media policies continues at a fervent pace, with growing pains apparent as ALJs make their own independent interpretations distinct from those of the GC.  Unfortunately, the NLRB’s social media jurisprudence and enforcement policy seem suffused with a sense of subjectivity that is very frustrating for employers.  Many cases seem to deal with no more than theoretical problems created by the unknowable reaction of unknown employees to various nuanced meanings of what appears to be common sense language in employer social media policies.  In any event, at this stage employers and their lawyers are tasked with attempting to comply with the law while reconciling different sources of NLRB authority and guidance on social media policies.  

Special thanks to Jon L. Dueltgen, Labor Associate in Proskauer’s New York office, for his assistance in preparing this post.