The NLRB and Social Media Policies

The National Labor Relations Board knows social networking. The NLRB is on Facebook. It is also on Twitter, and it has its own YouTube channel. As part of what it calls a “modern outreach and education strategy aligned with the contemporary workforce and workplace,” the agency hired Anthony Wagner in October 2009 as a New Media Specialist in the NLRB Office of Public Affairs. And the NLRB has published a Social Networking Comment Policy.

Perhaps of more significance to employers is the fact that the NLRB Division of Advice has already weighed in on at least one aspect of this new phenomenon. While Memoranda from the Division of Advice do not constitute formal adjudication or binding precedent, they are often quite instructive.

In response to an inquiry from the Regional Director from Minneapolis (Region 18), the Division of Advice considered whether a social media policy promulgated by Sears Holdings violated the National Labor Relations Act.

The International Brotherhood of Electrical Workers (IBEW) filed an unfair labor practice charge with Region 18 claiming that the Sears Holdings Social Media Policy violated Section 8(a)(1) of the NLRA because it might chill employee participation in union organizing activities. As often happens in cases that raise new or novel legal questions, the Regional Director submitted the issue to the agency’s Division of Advice for direction on whether to issue a Complaint.

The policy at issue stated:

[I]n order to ensure that the Company and its associates adhere to their ethical and legal obligations, associates are required to comply with the Company’s Social Media Policy. The intent of this Policy is not to restrict the flow of useful and appropriate information, but to minimize the risk to the Company and its associates.

* * *

Prohibited Subjects

In order to maintain the Company’s reputation and legal standing, the following subjects may not be discussed by associates in any form of social media:

· Company confidential or proprietary information

· Confidential or proprietary information of clients, partners, vendors, and suppliers

· Embargoed information such as launch dates, release dates, and pending reorganizations

· Company intellectual property such as drawings, designs, software, ideas and innovation

· Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects

· Explicit sexual references

· Reference to illegal drugs

· Obscenity or profanity

· Disparagement of any race, religion, gender, sexual orientation, disability or national origin

The Division of Advice analyzed the issue under the framework set forth by the Bush Board in Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004), a case that dealt with a rule prohibiting certain types of interactions in the workplace. The union in that case had argued that workplace rules prohibiting “abusive and profane language,” “harassment,” and “verbal, mental and physical abuse” unlawfully chilled union activity. The Board, announced a three-part test to determine the validity of rules that do not explicitly forbid union activity protected by Section 7 of the NLRA. Under that test, a rule is only unlawful if: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (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.” The Board in Lutheran Heritage Village found that the test was not met, so the rules prohibiting “abusive and profane language,” “harassment,” and “verbal, mental and physical abuse” were lawful.

Using that test, the Division of Advice opined that the Sears Holdings Social Media Policy did not violate the Act. It noted:

While the ban on “[d]isparagement of company’s . . . executive leadership, employees, [or] strategy . . . .” could chill the exercise of Section 7 rights if read in isolation, the Policy as a whole provides sufficient context to preclude a reasonable employee from construing the rule as a limit on Section 7 conduct. The Policy covers a list of proscribed activities, the vast majority of which are clearly not protected by Section 7.

The Division of Advice therefore concluded that the Regional Director should not issue a Complaint.

Can employers rely on the December 2009 Advice Memorandum in drafting or maintaining social media policies? Because no Complaint was issued, the question did not reach the Board for a adjudication. But issues regarding social media policies will almost certainly reach the Board at some point in the near future. The analysis by the Division of Advice in the Sears Holdings case certainly seemed sound under existing legal principles. However, under the Obama Board, the application of the Lutheran Heritage Village test (if not the test itself) may well change.

Then-Member Wilma Liebman (appointed Chairman by President Obama) and former Member Dennis Walsh strongly dissented in the Lutheran Heritage Village case. The dissenters noted that they were “struck by the ambiguity” of the rules and that words like “abusive” and “harassment” were “highly subjective.” In their view:

Without a defining context, or limiting language, the rules at issue here could subject to discipline—and thus inhibit—an angry conversation with a supervisor expressing dissatisfaction over an evaluation, a heated discussion between employees over the benefits of unionization, or a loud protest by employees over safety conditions. But expressions of displeasure, and even anger, are protected means of Section 7 communication.

The dissenting opinion went on to discuss “workplace realities” and suggested that “in the course of protected activity, tempers often flare, emotions run high, and employees sometimes do use language that is abusive but not so egregious as to cost them the protection of the Act.” Accordingly, Members Liebman and Walsh would have found the Lutheran Heritage Village rules to be unlawful.

Of course, the Obama Board may choose to acknowledge that communications in the online world of social media are different than face-to-face interactions in the workplace. Or it may not. But in either case it is prudent to study the Lutheran Heritage Village dissent when drafting or reviewing an employer’s social media policy.