The NLRB’s stance here is not an isolated incident. The board has become increasingly embroiled in the workplace policies of a vast slew of employers, a very large number of which are non-union. In fact, the NLRB is even considering throwing out its own precedent on whether employers can limit company email to business-related matters, on the basis that exercising this type of control violates the National Labor Relations Act.

As workers find more and different ways to communicate with each other and those outside the company, employers need to stay on top of the latest legal and regulatory developments. This will help limit trouble with regulators, minimize the potential for lawsuits, and, hopefully, avoid negative publicity.

The Long Reach of the NLRB

The NLRB, which enforces the National Labor Relations Act, protects the rights of most private-sector employees to join together to improve their wages and working conditions — known as protected concerted activity. This is true whether employees are unionized or not. Employees who believe their rights have been violated can file charges against their employers through the NLRB’s regional offices.

Understanding protected concerted activity has become very important in light of the NLRB’s changing focus. According to the NLRB’s website: “The law we enforce gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away. These rights were written into the original 1935 National Labor Relations Act and have been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court.”

Although always a political entity, in recent years the NLRB has become more partisan and very active in reviewing different types of employer policies to determine if they infringe or could infringe on protected activity. As an interesting aside, just last month, the U.S. Supreme Court ruled that several of President Obama’s recess appointees to the NLRB were placed there unconstitutionally. Accordingly, by at least one count, around 128 cases have been effectively overturned because they were decided by an unconstitutional board. Others have placed the estimate of affected cases as high as 800. The NLRB is likely to continue on the same anti-employer trend that it has been on for the last several years, but the need to revisit these cases may hinder the board’s agenda. Notwithstanding, employers should still expect a very pro-union, pro-employee, and anti-employer NLRB.

Social Media

As employers grapple with comments and postings their employees make on Facebook, LinkedIn, and other social media outlets, they must do so with an eye toward the National Labor Relations Act. Common social media policies, such as policies instructing employees not to post false or derogatory statements online, have been found by the NLRB to infringe upon employees’ rights to engage in protected concerted activity, and, thus, have been held unlawful. For example, on April 7, Valero Services Inc. agreed to rescind its nationwide social media policy in response to a complaint filed by the NLRB. The Valero case begin in 2012, when United Steelworkers Local 13-423 filed an unfair labor practice charge with the NLRB, claiming Valero’s social media policy interfered with employees’ rights to discuss their terms and conditions of employment.

According to the NLRB, “Valero Services agreed to notify employees that it will rescind its unlawful social media policy and to post NLRB notices at its 52 facilities nationwide, as well as to mail notices to employees, advising them that they will not be prohibited from using social media to discuss their terms and conditions of employment.”

Communication Policies

In the Hills and Dales case, the NLRB considered the company’s “Values and Standards of Behavior” policy. The NLRB found several aspects of the policy were unlawful on their face, because the policy could prohibit protected concerted activity.

The paragraphs in question read:

Teamwork

11. We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.

16. We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.

Attitude

21. 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.

In 2011, the hospital cited paragraph 16, which required employees to present the hospital in a “positive and professional manner,” when it issued a written warning to an employee for posting an explicit comment on Facebook aimed at fellow employees.

According to the NLRB, the employee was responding to remarks by a former coworker who had been fired for “playfully throwing a yogurt cup at [her] boss.”

The NLRB ordered the hospital to revise or rescind the paragraphs in question. “This is the standard remedy to assure that employees may engage in protected activity without fear of being subjected to an unlawful rule,” according to the decision.

Email

In a case that began with a failed unionization vote at Purple Communications Inc., the NLRB is now considering whether to allow employees to use their work email in unionizing and other protected activities. That would overturn a 2007 ruling in the Register Guard case, which found that “employees have no statutory right to use the employer’s email system for Section 7 purposes.”

In the Purple Communications case, the employer’s rule regarding limiting company equipment for work-related purposes came under fire after an attempt to unionize failed. The union complained that the company’s policy that prohibited employees from using company hardware, Internet, and email systems to engage with those who had “no professional or business affiliation with the company” constituted an unfair labor practice.

Purple Communications said the rule was designed to keep viruses from infecting its call centers. However, the union argued it was overbroad and interfered with employees’ Section 7 rights.

While the administrative law judge in the case dismissed the union’s allegations, the NLRB’s general counsel and the union asked the NLRB to reconsider. The NLRB asked both parties for responses in the case, as well as other interested parties to weigh in. Among the questions the NLRB is considering: “If the board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?”

A reversal of the Register Guard decision could have significant implications on the type of control that employers can exercise over their own communication systems. For example, it could open up the ability for an employee to send an explicit or inappropriate email company-wide, and then rely on labor law to protect his job. It would also limit or perhaps even eliminate an employer’s right to monitor its email system for potential abuse.

Next Steps

Between changing technologies and increasing NLRB activity, it’s time for employers to carefully consider a wide range of issues involving their communications policies. If companies don’t have policies on social media, external communications, and email, they need to consider implementing them. If they do have policies in place, companies should revisit them and update as necessary.

Employers should work very closely with in-house and outside counsel when drafting or updating policies. They should also proceed carefully before taking any actions to discipline or terminate employees for violating any type of communication policy.

When reviewing and revising company policies, employers should avoid broad terms, such as “negativity.” Instead, employers should include examples and clarification of such terms, making clear, for example, that policies are directed toward discrimination, harassment, or other types of unlawful activity.

Employers must also proactively stay on top of changes in policy, regulations, and enforcement by the NLRB. Even if they don’t have unionized workforces, NLRB decisions can have profound impact on employers’ day-to-day operations.

Publication date: 7/21/2014

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