The Catholic University of America

TOPIC:

THE NLRB’S RECENT FOCUS ON NON-UNION EMPLOYERS AND ITS IMPACT ON COMMON EMPLOYMENT POLICIES AT COLLEGES AND UNIVERSITIES


AUTHORS:

Neil S. Goldsmith, Associate, Franczek Radelet P.C.

Scott L. Warner, Partner, Franczek Radelet P.C.

 

INTRODUCTION:

The National Labor Relations Board (“NLRB” or the “Board”) administers and enforces the National Labor Relations Act (“NLRA” or the “Act”). [1] With labor union membership steadily declining over the past 50 years, the Board’s impact and relevance has also steadily declined. [2] The enactment of employment law statutes, including Title VII of the Civil Rights Act of 1964, and the prevalence of the Equal Employment Opportunity Commission (“EEOC”) have also overshadowed the NLRB. As a result, most colleges and universities have been more concerned about EEOC charges and employment discrimination lawsuits than NLRB charges and union organizing campaigns.

However, due to the Obama Administration’s strong pro-labor stance, this is rapidly changing, making the NLRB increasingly relevant in higher education. The NLRA protects all private-sector employees, not just those who belong to labor unions. Thus, what some institutions might not fully appreciate is that the NLRA applies to nearly all private colleges and universities, regardless of whether they employ unionized workers. [3] In fact, the NLRB recently launched a web site aimed at educating non-union employees about their rights under the Act. [4] The Board has also tried to impose a requirement that all employers – unionized or not – would have to post an official notice from the NLRB that would detail the rights that employees have under the Act. [5] Additionally, last fall, two U.S. House of Representatives subcommittees convened a congressional hearing to discuss the increasingly expansive reach that the Board has recently exhibited in higher education matters. [6] A number of recent and pending decisions will have serious consequences for colleges and universities, and counsel must be prepared for them.

This Note will address a number of recent Board decisions that involve common college and university employment policies and practices, regardless of whether an institution’s employees are unionized. A future NACUANOTE will address the Board’s pending decisions in Point Park University [7] (a case in which the Board will provide more detailed guidance as to how it will apply the Supreme Court’s ruling in NLRB v. Yeshiva University [8] to cases in which an institution argues that its faculty are all managerial employees and not subject to the Act) and New York University [9] (in which the NLRB is once again wrestling with the question of whether graduate teaching assistants and research assistants are employees under the Act and thus entitled to unionize).

Before undertaking any discussion of NLRB developments, it is also critical to mention the D.C. Circuit Court of Appeals’ recent decision in Noel Canning v. NLRB, [10] which held that President Obama’s January 2012 recess appointments of three members of the NLRB were unconstitutional, and thus casts serious doubts on the precedential value of any NLRB decisions made since that time. [11] For now, however, these NLRB decisions remain good law, [12] and the NLRB has made it clear that it will continue to treat these decisions as valid until and unless the Noel Canning decision is affirmed by the U.S. Supreme Court. [13] For this reason, colleges and universities could be found in violation of the NLRA if they do not follow the Board’s guidance in this area while awaiting the outcome of further appeals in Noel Canning.

 

DISCUSSION:

During the course of the last few years, the NLRB has aggressively expanded its efforts to pursue violations of the NLRA against non-union employers in areas not involving labor disputes. A number of recent NLRB decisions have attacked employment policies that are commonplace in employee handbooks across all industries, including higher education. Seemingly innocent, well-intentioned, and generally accepted policies have been found by the NLRB to violate employees’ rights under the NLRA because they are seen as “chilling” the rights of employees to engage in protected, concerted activity under the Act. For instance, the Board has dealt with cases where non-unionized employees were unlawfully disciplined or discharged for engaging in concerted action with other employees by criticizing their employer through Facebook postings or other social media communications.

In order to understand the Board’s rationale in these cases, a brief discussion of employees’ Section 7 rights is essential. Section 7 of the NLRA states, “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection….” [14] These rights apply to all individuals employed by private sector employers—both union and non-union—including nearly all employees at private colleges and universities. [15] The NLRB and the courts have consistently held that Section 7 rights are quite broad, encompassing any concerted action by employees involving activity or communications that touch upon wages, hours, and terms and conditions of employment. If an employer interferes or attempts to interfere with these employee rights—by way of threats, unlawful policies, surveillance, discipline, or other means—it will violate Section 8(a)(1) of the Act. The cases discussed below all hinge on whether an employer’s action or policy violates employees’ Section 7 rights and are applicable in the higher education setting. [16]


Social Media

The use of social media on campus and in the workplace has created a number of thorny legal issues for colleges and universities. Two broad areas of concern have arisen in the context of the NLRA: 1) whether the mere maintenance by an employer of certain policies that restrict what employees can say on social media is lawful; and 2) whether individual cases of employee discipline for their conduct on social media sites involve protected concerted activity. During the past year, the Board has issued four major decisions in these areas.

The first major decision was Costco Wholesale Corp. [17] In Costco, the Board ruled that Costco’s online communications policy violated employees’ Section 7 rights. The policy prohibited employees from posting statements “that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement.”

The Board took issue with the breadth of the policy, finding that it “clearly encompasses concerted communications protesting [Costco’s] treatment of its employees.” The Board found that employees reading the policy would reasonably conclude that it prohibits them from engaging in protected communications – namely those that are critical of Costco or its agents. The Board also found problematic the absence of any accompanying language that would restrict its application, such as a statement that it does not apply to communications protected under Section 7 of the NLRA. For these reasons, the Board held that Costco’s policy had “a reasonable tendency to inhibit employees’ protected activity,” and, therefore, violated the Act. [18]

In Karl Knauz Motors, Inc., [19] decided just three weeks after Costco, the Board examined another social media issue where a car dealership employee was fired for posting photos and comments on Facebook criticizing two work events. Although the Board found that firing the employee did not violate the Act, [20] it held that the following courtesy policy in the company’s handbook was unlawful:

Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

Relying on Costco, the Board held that the policy was unlawful because employees could “reasonably construe” the language prohibiting “disrespectful” conduct and “language which injures the image or reputation of the Dealership” to include statements made to others in order to improve employees’ working conditions, which is protected activity under the Act. The Board criticized the policy for two reasons. First, the handbook did not inform employees that statements protected under the Act were not prohibited under the courtesy policy. Second, employees could reasonably assume that the company would regard statements of protest or criticism as disrespectful or injurious to its reputation. Because the policy could be broadly interpreted to prohibit protected activity, the Board determined that the policy violated the Act.

The third case in this area involved the discharge of employees for statements made in Facebook postings. In Hispanics United of Buffalo, Inc., [21] an employee of a social service agency, Lydia Cruz-Moore, repeatedly criticized the efforts of other employees, including Marianna Cole-Rivera. One day Cruz-Moore texted Cole-Rivera that she was going to go to the executive director of Hispanics United with her concerns. In response, Cole-Rivera posted on Facebook, “Lydia Cruz, a coworker feels that we don’t help our clients enough at [Hispanics United]. I about had it! My fellow coworkers how do u feel?” Four off-duty employees responded to this post and disagreed with Cruz-Moore’s alleged critique. Cruz-Moore saw and responded to these posts and presented them to the executive director. The executive director then discharged Cole-Rivera and the other employees who responded to her post on Facebook.

The Board found that the employer violated Section 8(a)(1) of the Act in terminating the employees in response to their Facebook posts. The key question was whether the employee communications were for the purpose of mutual aid or protection. The majority found that the Facebook postings were “concerted [activity] for the ‘purpose of mutual aid or protection’” and were thus protected conduct under Section 7. The activity was concerted both because the employees’ actions were “undertaken with other employees” and because the employees were taking a “first step towards taking group action to defend themselves” against the complaining employee’s accusations. The Board pointed out that the “object or goal” of initiating the group action does not have to be clearly stated for conduct to receive protection under the NLRA.

A fourth case issued in late January was Direct TV. [22] In this case, the NLRB struck down various provisions of an employee handbook and two corporate policies maintained by the employer on its intranet system. The Board said generally that the policies under review could reasonably be construed by employees as prohibiting Section 7 activity.

1.  

The first policy directly stated: “Do not contact the media.” The Board noted it was “settled” law that Section 7 encompasses employee communications about labor disputes with newspaper reporters.

2.  

The second policy statement struck down was: “Public Relations. Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations.” The Board explained that any rule that requires employees to secure permission from their employer as a precondition to engaging in protected concerted activity on an employee’s free time and in non-work areas is unlawful (citing Brunswick Corp., 282 NLRB 794 (1987)).

3.  

The Board also struck down the following provision: “If law enforcement wants to interview or obtain information regarding a DIRECTV employee, whether in person or by telephone/email, the employee should contact the security department in El Segundo, CA who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments.” This provision was struck down because it could be construed to force employees to contact security before cooperating with an NLRB investigation. The Board concluded that an employee might reasonably construe Board agents as “law enforcement.”

4.  

The Board also invalidated the following confidentiality provision: “Confidentiality… never discuss details about your job, company business or work projects with anyone outside the company and never give out information about customers or DIRECTV employees.” The rule also interpreted “company information” to include “employee records.” The Board said this would reasonably be understood to restrict discussion of employee wages and working conditions. Also, the rule did not exempt protected communications with third parties such as union representatives, Board agents, or other government officials.

5.  

With regard to the employer’s intranet policy, the Board struck down the following provision: “Employees may not blog, enter chat rooms, post messages on public websites or otherwise discuss company information that is not already disclosed as a public record.” The ambiguity of the term “company information” could lead an employee to believe information about employee wages, discipline or performance records might be included. Ambiguity will be construed against the company.

 

 

In addition to these cases, the NLRB Division of Advice [23] has also issued three advice memoranda which provide examples of both legal and illegal social media policies. If the guidance from these memos can be distilled, the following principles are apparent:

1.  

General restrictions about employees being prohibited from releasing or discussing “confidential” information about the employer, in the absence of any further clarification, will likely be deemed too broad, as employees may construe such sweeping policies as prohibiting discussion of wages and working conditions.

2.  

Social Media policies will be treated no differently from other work rules or employee handbook policies. Thus, a policy may be deemed illegal if:

  1. The employees would reasonably construe the language to prohibit Section 7 activity; or
  2. The rule was promulgated in response to union activity; or
  3. The rule has been applied to restrict the exercise of Section 7 rights.

3.  

Attempts to restrict employees from discussing their working conditions with the outside world will likely be deemed illegal.

4.  

Statements that the policy is not intended to restrict Section 7 rights can be helpful in close cases, but cannot otherwise make legitimate an unlawful policy.

5.  

The more examples of what is permissible and impermissible under the policy, the less likely the Board will find that a policy is ambiguous and construed against the employers.

6.  

Individual gripes by a single employee, without more, are not likely to be considered protected, concerted activity. [24]

 

The takeaway: These cases illustrate that colleges and universities must act cautiously when establishing social media policies or when considering disciplining employees for comments made on Facebook, Twitter, or any other social media outlet. To this end, understanding the difference between protected and unprotected activity under Section 7 of the Act is essential. If criticism of the institution could reasonably be viewed as a protest against wages, hours, or working conditions, it is protected under Section 7 of the NLRA. More importantly, these cases also illustrate that the NLRB will continue to closely scrutinize employee handbooks and invalidate any policy that could potentially be interpreted to prohibit employees from engaging in activity protected under Section 7 of the Act. As a result, colleges and universities should revisit their social media policies and pay close attention to overbroad policies that could be construed as violating their employees’ Section 7 rights.


Internal Investigations

Another area where recent NLRB decisions affect colleges and universities is internal investigations. As most higher education professionals know, confidentiality is essential in investigating internal disputes and grievances. A university’s investigation of wrongdoing can be seriously compromised if involved parties begin discussing the particulars of the investigation with others while the investigation is ongoing. Despite the importance of safeguarding confidentiality, the NLRB has held that such policies may violate the NLRA.

In Banner Health Systems, [25] the Board found a violation of the Act when one of the employer’s Human Resources (“HR”) staff asked an employee not to discuss the matter under investigation with his co-workers. The case arose when a hospital technician refused to follow his supervisor’s orders to clean surgical instruments with hot water from a coffee machine. During the investigation, the hospital’s HR staff instructed the technician not to discuss the matter with other employees. The HR staff made this request as a matter of course in all of the hospital’s internal investigations.

The Board took issue with the employer’s confidentiality instruction and use of a preprinted interview form with “instructions for all interviews” that contained a request that employees not discuss the investigation with others. The Board held that an employer could only make such a request on a case-by-case basis after first determining that “witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up.” Notably, the Board found that maintaining the integrity of the investigation was not a sufficient justification. Because the employer enforced the blanket confidentiality rule, the Board held that it violated employees’ rights to engage in Section 7 activity.

This case illustrates the need for colleges and universities to re-examine their policies and protocols regarding the confidentiality of investigations. Seemingly, any blanket prohibition on discussing ongoing investigations with other employees could constitute a violation of the Act. [26] The other noteworthy aspect of this case is that it was filed by an unrepresented, individual employee—not a union or a lawyer—and contained no allegations of any union activity. This further emphasizes that the NLRB is increasingly focused on non-union employers and that non-union employees are now petitioning the NLRB for assistance in what were once run-of-the-mill employment disputes.


Off-Duty Access

Under the Act, employers are allowed some freedom to limit union solicitation by employees on their premises, subject to a variety of restrictions. [27] With regard to the particular question of whether or not an employer can stop off-duty employees from returning to work to engage in solicitation, the Board has long held that an employer can maintain a policy that restricts off-duty employees from returning to work to engage in solicitation, provided that it applies the rule uniformly and provided that the employer does not allow access for other purposes. [28] Recently, however, the Board has made it more difficult for employers to enforce such policies.

The very nature of the physical workplace in higher education is unique. Unlike employers who operate in confined settings like factories, retail stores, or corporate office buildings where employees are easily identifiable, most colleges and universities are located on campuses with many buildings and other areas that are often open to the public. In the higher education setting, the boundaries of work areas and even the identity of employees can be difficult to discern at any given time. For this reason, many institutions craft policies that attempt to define the boundaries of access that employees have while on-duty and off-duty.

The Board has now ruled that it will apply such policies very narrowly. In Sodexo America LLC, [29] the Board ruled that a university hospital’s off-duty access policy violated employees’ Section 7 rights under the Act. The policy at issue prohibited off-duty employees from entering the hospital unless they were visiting a patient, receiving medical treatment, or conducting “hospital-related business,” which the hospital’s handbook defined as “the pursuit of the employee’s normal duties or duties as specifically directed by management.”

The Board took issue with the “specifically directed by management” language of the policy, finding that it provided the hospital with “unlimited discretion to decide when and why employees may access the facility.” The Board read the rule on its face as prohibiting employee access for purposes of engaging in Section 7 activity—such as picketing and distributing pro-union literature—while permitting access for other reasons as specified by management. It further reasoned that such a policy lacked uniformity in the sense that it did not prohibit off-duty access entirely; rather, it prohibited access only when not “specifically directed by management.” The Board found that this broad language gave the Hospital “free rein to set the terms of off-duty employee access,” which violated the Act. In J.W. Marriott, [30] decided two months after Sodexo, the Board struck down a similar rule that dealt with access by off-duty employees, finding that the policy gave the respondent “unlimited” discretion to decide when and why employees could access the facility.

The Sodexo and J.W.Marriott rulings are easily transferable to a campus setting. Because a policy prohibiting employees from entering an employee’s facility except when directed by management violates the Act, it is likely that a policy prohibiting off-duty university employees from being on campus or in campus buildings unless authorized by a supervisor would also violate the Act. Sodexo and J.W. Marriott also highlight the NLRB’s willingness to construe access policies against employers and essentially ignore the purpose or intent behind the rule. Thus, even if a university had legitimate reasons for restricting off-duty access—such as campus safety—as long as a rule could be read to interfere with employees’ Section 7 rights, it may very well be deemed unlawful.


At-Will Employment

Much to the surprise of many employers, the NLRB has even criticized an “at-will” disclaimer similar to comparable statements contained in nearly every employee handbook. Such a policy statement is important because it often prevents an employee handbook from being construed as an employment contract and makes clear to non-tenured employees that their employment is terminable at the will of the employer or employee at any time. Although the Board has not issued a binding decision invalidating at-will policies, various officials within the NLRB have taken the position that they may violate employees’ Section 7 rights. [31]

Earlier this year, the NLRB’s Phoenix Regional Office issued a complaint against Hyatt Corporation based on allegedly overbroad provisions in an employee handbook acknowledgment. Specifically, the NLRB’s General Counsel alleged that three extremely common provisions were overly broad and discriminatory: (1) “I understand my employment is ‘at will,’” (2) “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and Hyatt’s president or executive vice president/COO,” and (3) “[T]he at-will status of my employment . . . can only be changed in a writing” signed by the employee and one of the two Hyatt executives.

The issuing of the Hyatt complaint was a direct response to an NLRB ALJ decision that ruled that the American Red Cross had violated the Act by using a similar at-will acknowledgment. [32] The rationale underlying these allegations, as stated by the ALJ, is that requiring an employee to sign such an acknowledgement is “essentially a waiver in which an employee agrees that his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her at-will status.” [33]

On October 31, 2012, the NLRB Division of Advice issued two memoranda addressing at-will employment policies. [34] Both memoranda involved policies that NLRB Regional Offices had alleged could chill employees’ exercise of their Section 7 rights because of their overbreadth. The policy in the first advice memorandum stated as follows:

“No manager, supervisor, or employee of [the Company] has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.”

The policy in the second memorandum stated:

“No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship. Nothing contained in this handbook creates an express or implied contract of employment.”

In a rare, yet non-binding, “victory” for employers, the Division of Advice concluded that neither policy would “reasonably be interpreted to restrict an employee’s Section 7 right to engage in concerted attempts to change his or her employment status,” because all they did was limit employers’ representatives from entering into separate employment agreements with employees. Absent evidence of interference with employee rights and without any overt statements targeting Section 7 rights in the policies themselves, the Division of Advice found that both policies were lawful. However, the Division of Advice also acknowledged that its new guidance contradicted American Red Cross and the Hyatt complaint. With the law in this area unsettled, the memoranda directed the NLRB Regional Offices to submit all cases that involved similar at-will employee handbook provisions to the Division of Advice.

Although the NLRB’s decisions and guidance with regard to at-will employment provide no clear rule, at-will policies are clearly on the NLRB’s radar and should be subject to further scrutiny. At some point, an employer will likely challenge an NLRB ruling that declares a particular at-will acknowledgment “unlawful,” which should provide useful guidance to employers and employees about the scope of these policies. Until then, colleges and universities should re-examine their at-will policies to ensure that they comply with the NLRB’s latest guidance. The NLRB’s aggressive enforcement in this area is further evidence of the NLRB’s expanding reach beyond unionized workplaces.



CONCLUSION:

Like any other employer, colleges and universities should consider the Board's recent decisions on employment policies and make thoughtful decisions about how, if at all, to change their current policies, recognizing that there may be some risk if policies that have been the subject of NLRB scrutiny are challenged. Maintaining an up-to-date employee handbook that complies with these recent decisions (or at least takes them into account) will help keep colleges and universities out of the NLRB’s crosshairs. More specifically, counsel should familiarize themselves with employees’ Section 7 rights under the NLRA and carefully scrutinize any aspect of any employment policy that could interfere with such rights. The NLRB has established that it will interpret those rights broadly and what may be considered a strained interpretation of Section 7 to an untrained eye may ultimately be deemed unlawful by the Board. In short, colleges and universities must tread cautiously in this area in adopting employment policies or practices that could infringe upon employees’ Section 7 rights.



ENDNOTES:

1. As an agency, the NLRB is organized into two departments: The Board and the Office of the General Counsel. Regional Directors, which fall under the jurisdiction of the Office of the General Counsel, investigate and decide issues related to union representation. Administrative Law Judges (“ALJs”), which fall under the jurisdiction of the Board, hear and decide issues related to violations of the Act called unfair labor practices. The Board hears appeals of decisions of both Regional Directors and ALJs. For a helpful illustration, see the NLRB’s organizational chart.

2. In 2012, only 11.3% of all U.S. workers were union members, including only 6.6% of all private sector workers. Bureau of Labor Statistics, Union Members Summary (Jan. 23, 2013). In 1953, 35% of all U.S. workers belonged to a union. Theodore St. Antoine, Charles Craver, and Marion Crain, Labor Relations Law: Cases And Materials at 17 (11th ed. 2005).

3. The NLRA applies to private universities but not to public universities. However, state labor laws—which do apply to public universities—often mirror the NLRA, and state labor boards closely follow NLRB precedent. Therefore, while not binding on public universities, NLRB decisions are still highly relevant to public institutions.

4. http://www.nlrb.gov/concerted-activity.

5. The posting requirement has been bogged down in litigation since the Board first attempted to impose it in 2011. It has not gone into effect and thus far no employer is required to comply with the Board’s posting requirement. A recent decision of the U.S. Court of Appeals for the D.C. Circuit struck down the requirement as beyond the Board’s power. National Association of Manufacturers v. NLRB, (Case No. 12-5068; May 7, 2013). The U.S. District Court for the District of South Carolina has similarly ruled. Chamber of Commerce v. NLRB, 856 F. Supp. 2d 778 (D.S.C. 2012)

6. See Peter Schmidt, House Republicans Denounce Federal Labor Board’s Actions as Threatening Colleges, The Chronicle Of Higher Education (Sep. 12, 2012).

7. NLRB Case No. 06-RC-012276.

8. 444 U.S. 672 (1980).

9. NLRB Case Nos. 2-RC-23481 and 29-RC-12054.

10. No. 12-1115, slip. op. (D.C. Cir. Jan. 25, 2013).

11. Since Noel Canning, the Third Circuit Court of Appeals has also invalidated a Board decision on the grounds that it was signed by a Board member whose recess appointment was unconstitutional. NLRB v. New Vista Nursing and Rehabilitation, LLC, No. 11-3440, slip. op. (3d Cir. May 16, 2013). New Vista Nursing casts doubts on the validity of any Board decision signed by member Craig Becker, who was appointed in March 2010. See Doug Hass and Chris Johlie, Third Circuit Invalidates President Obama’s Appointment of former NLRB Member Becker; Becomes Second Appellate Court To Rule NLRB Recess Appointments Unconstitutional (May 17, 2013).

12. For a more detailed discussion of this case, see Doug Hass, D.C. Court of Appeals Rules NLRB Recess Appointments Were Unconstitutional; Calls into Question Hundreds of Decisions Issued Last Year (Jan. 25, 2013), and Doug Hass, Noel Canning Aftermath: Perspectives for Employers Three Weeks after D.C. Circuit’s Important NLRB Decision (Feb. 18, 2013).

13. Colleen Flaherty, Status Quo at NLRB (Jan. 28, 2013). The Supreme Court granted the petition for certiorari on June 24, 2013.

14. 29 U.S.C. § 157.

15. Most state labor laws contain similar protections for public employees.

16. For a more detailed discussion of employees’ Section 7 rights, see The Developing Labor Law (6th ed.), Chapter 6.I.B.: Section 7—Rights of Employees (2012).

17. 358 NLRB No. 106 (2012). For a more detailed discussion of this case, see Neil Goldsmith and Jackie Wernz, National Labor Relations Board Finally Weights in Social Media Policies (Sep. 21, 2012).

18. The Costco ruling is consistent with previous non-binding advice memoranda on social media policies issued in August 2011, January 2012, and May 2012 by the NLRB General Counsel’s Office. See NLRB Operations-Management Memos. The May 2012 memorandum rejected 6 social media policies as overbroad but held that a Wal-Mart social media policy was lawful. However, it is difficult to objectively distinguish between the Wal-Mart policy and the rejected policies, leaving little guidance for employers who wish to adopt a lawful policy.

19. 358 NLRB No. 164 (2012). For a more detailed discussion of this case, see Josh Meeuwse and Jennifer Dunn, NLRB Finds That Employer Lawfully Fired Employee Over Facebook Posts, But Its Courtesy Policy Violated The NLRA (Oct. 4, 2012).

20. The NLRB held that the employee’s posts about the Land Rover incident were not protected because they had no connection to his or other employees’ terms and conditions of employment. The evidence showed that the employer discharged the employee because of the posts about the Land Rover incident and not because of his posts about the cheapness of the event; so consequently, his discharge did not violate the Act. Although the ALJ found that the employee’s posts about the cheapness of the event were protected, he did not find liability because the employee was not discharged for these posts.

21. 359 NLRB No. 37 (2012).

22. 359 NLRB No. 54 (2013).

23. The Division of Advice falls under the jurisdiction of the Office of the General Counsel. Its memoranda are non-binding and solely reflect the views of the Office of the General Counsel, and not necessarily the Board or the NLRB as a whole.

24. It should be noted that, despite its reach, the NLRA does not protect individual employees who complain about their own personal dissatisfaction with their employer. Thus, in one case cited by the NLRB’s General Counsel in his first advice memo, he wrote:

We concluded that the employee’s Facebook postings were an expression of an individual gripe and were not concerted.… They contained no language suggesting the employee sought to initiate or induce his coworkers to group action; rather they expressed only his frustration regarding his individual dispute with his Assistant Manager….

August 2011 Memorandum. In another case, a bartender had complained about his employer’s tipping policy, specifically that waitresses do not have to share their tips with bartenders. The bartender had a conversation with a relative one night on Facebook and, in response to an inquiry about how his job was going, he posted that he hadn’t had a raise in five years; complained about the tipping policy; that the customers were all “rednecks;” and that he hoped they choked on glass as they drove home drunk. He did not discuss his posting with any coworker. He was ultimately fired for his posting. In finding that the termination did not violate the Act, the Board noted:

The Board’s test for concerted activity is whether activity is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” We found no evidence of concerted activity here. Although the employee’s Facebook posting addressed his terms and conditions of employment, he did not discuss the posting with his coworkers and none of them responded to his posts. There had been no employee meetings or any attempt to initiate group action concerning the tipping policy or raises.

August 2011 Memorandum.

25. 358 NLRB No. 93 (2012). For a more detailed discussion of this case, see Doug Hass, In Another Attack on General Employment Policies, NLRB Nixes Confidential Workplace Investigations (Aug. 6, 2012).

26. However, the failure to keep an allegation of misconduct confidential could lead to a defamation claim. Thus, employers may want to weigh the risk of an NRLB charge with that of a defamation claim for failing to keep a matter confidential.

27. See Nicholas DiGiovanni, NACUANOTES Vol. 4, No. 3, Non-Solicitation Rules and Union Organizing under the National Labor Relations Act (2006) for a detailed review of the permissible scope of employer solicitation rules under the Act.

28. Tri-County Medical Center, 222 NLRB 1089 (1976).

29. 358 NLRB No. 79 (2012). For a more detailed discussion of this case, see Neil Goldsmith and Chris Johlie, National Labor Relations Board Finds Off-Duty Access Policy Violates Workers’ Rights (Jul. 13, 2012).

30. 359 NLRB No. 8 (2012).

31. For more detailed discussions of NLRB regulation of at-will employment policies, see Doug Hass, Recent NLRB Division of Advice Memoranda Regarding At-Will Disclaimers Helpful, but More Guidance Needed (Nov. 6, 2012) and Doug Hass, NLRB Broadens Challenges to Employers, Probes At-Will Employment (Jul. 18, 2012).

32. American Red Cross, 2012 WL 311334 (N.L.R.B. Feb. 1, 2012).

33. In June 2012, NLRB Acting General Counsel Lafe Salomon confirmed this approach. Speaking at the Connecticut Bar Association’s annual meeting, he indicated that the NLRB has identified at-will employment policies as the agency’s next enforcement target. He stated that if an employee could reasonably believe that an at-will employment clause means that an employee could not change his or her at-will status even by seeking union representation and a collective bargaining agreement, then such at-will clauses would chill employees’ exercises of their Section 7 rights.

34. See Rocha Transportation, NLRB Case No. 32-CA-086799; Mimi’s Café, NLRB Case No. 28-CA-084365.





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