By: Jonathan T. Swain and Daniel Finerty

Despite the General Counsel’s issuance of three (3) separate memoranda regarding its social media cases, the National Labor Relations Board (Board) itself had not ruled on a case dealing with the issue. However, that changed on September 7, 2012 and again September 28, 2012, when the Board invalidated two social media policies as applied to employee online conduct.

On September 7, 2012, the Board released Costco Wholesale Corp., 358 NLRB No. 106 (2012), in which it reversed the finding by an Administrative Law Judge (ALJ) and found that Costco’s social media policy violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by inhibiting employees from exercising their protected Section 7 rights. Specifically, the Board found objectionable the fact that the policy prohibited statements posted online which “damage the Company, defame any individual or damage any person’s reputation.”

While an ALJ earlier found that the employer’s stated purposes when issuing the policy was to foster a “civil and decent workplace” and signaled that employees would not reasonably infer that the policy restricted employee rights under Section 7 rights (to join, form or assist a union or to engage in other concerted activity for the purposes of collective bargaining or other mutual aid or protection), the Board found the rule “clearly encompasses concerted communication protesting [Costco’s] treatment of its employees> and, as a result, violated Section 8(a)(1).

On September 28, 2012, the Board found that the employer’s “Courtesy” policy violated Section 8(a)(1) of the NLRA. Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012). The rule provided that “[c]ourtesy is the responsibility of every employee,” “[e]veryone is expected to be courteous, polite and” and that “[n]o one should be disrespectful or use profanity or any other language which injures the image or reputation” of the employer. The Board held that “employees would reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language which injures the image or reputation of the [employer]’ as encompassing Section 7 activity, such as employees’ protected statements-whether to coworkers, supervisors, managers, or third parties who deal with the Respondent-that object to their working conditions and seek the support of others in improving them.”

However, the Board ultimately found that the Knauz Motor’s firing of a BMW salesperson for posting photos and comments on his Facebook page did not violate the NLRA because the activity was neither “concerted” nor “protected.” Why? Because the salesperson in question posted a series of work-related photos that disparaged the dealership and customers. The photos concerned a “picnic” promotion event involving the serving of hot dogs and chips (described as “low-brow”) and an on-site accident by a customer, after which the salesperson posted sarcastic remarks about the car and the customer.

There are several implications that follow from these decisions. Foremost is that the Board’s social media doctrine has now been “officially” adopted by the Board itself and they seem to be following their General Counsel’s lead.

Second, the Board’s doctrine continues to exhibit an aggressive approach toward social media policies. Even if the Board does not find that a work rule explicitly restricted employees in the exercise of their Section 7 rights, the Board may still determine the work rule violates the NLRA if employees would reasonably construe the language to prohibit Section 7 activity. The inquiry is not necessarily based upon the facts applicable but, rather, upon the Board’s analysis of how an employee may construe the rule. This amorphous standard signals that “unlawful” under Section 8(a)(1) may be a moving target, i.e., whatever the current Board says is unlawful. This is a difficult standard.

That said, the Board has also disingenuously rejected any attempts by employer to reasonably “carve out” an exception for an employee’s exercise of NLRA rights. In Karl Knauz Motors, the Board found that “there is nothing in the rule, or anywhere else in the employee handbook, that would reasonably suggest to employees that employee communications protected by Section 7 of the Act are excluded from the rule’s broad reach.” Would such a statement by an employer save the rule? Perhaps.

Great care must be taken in drafting and enacting these policies. In the end, the Board views itself as protecting an employee’s right to discuss the terms and conditions of their employment, even if it is done “in public” via social media. The Board is on a slippery slope and it is ignoring the fact that the water cooler areas or break rooms of the past, where such conversations routinely took place, are being replaced by the likes of Facebook, which now has in excess of one billion users!

In addition, the Board has recently found or alleged that other common employer policies are unlawful. These policies include policies that guide employer investigations, such as asking employees to maintain the confidentiality of information during an internal investigation, Banner Health System, 358 NLRB No. 93 (2012), or requiring employees to do so, Hyundai America Shipping Agency, Inc., 357 NLRB No. 80 (2011), and contractual disclaimers that define employment as “at will,” American Red Cross Arizona Blood Services Region, 28-CA-23443 (Feb. 1, 2012); NLRB v. Hyatt Hotel Corp., Case 28-CA-061114 (complaint) (May 23, 2012) (employer subsequently agreed to modify its at-will policy and post a Board notice that no oral or written statements or representations regarding employment can alter employee’s at-will employee status, except for a written statement signed by employee and either the employer’s Executive Vice-President, Chief Operating Officer or its President).

The current Board can be expected to continue to push the limits when enforcing the NLRA. Non-union employers should note that the NLRB’s enforcement efforts have been without regard to whether the workforce is unionized, or not. The NLRA applies equally in both unionized and non-union workplaces.

If you have questions, feel free to call Jonathan Swain at 414-226-4812, or Daniel Finerty at 414-226-4807, or any other Lindner & Marsack attorney at 414-273-3910.