On July 31, the Senate confirmed five new members to the National Labor Relations Board (NLRB), three Democrats and two Republicans, restoring the NLRB to full membership for the first time in a decade.
Established by the National Labor Relations Act (NLRA) in 1935, the NLRB has increasingly become a focus of partisan politics, with the party holding the White House appointing a majority of either pro-labor or pro-business members. Unlike a court of law, the NLRB is not bound by its own precedent. Its decisions on controversial issues swing wildly based upon the party makeup of the sitting board. In fact, “party oscillation” has become the NLRB’s new norm, following a change in administration. With a solid three member pro-union majority on the recently appointed board, President Obama’s pro-Union agenda should have very little problem in being advanced.
So what does this mean for union and non-union employers? Well, if the past two years are any indication, even non-union employers should take notice and prepare themselves for a bumpy ride. With the decline of union membership in recent years, the NLRB has taken an unprecedented reach into non-union employers’ business practices, striking down employer policies that encroach upon “protected concerted activity.” One such policy that has attracted the NLRB’s increased scrutiny is employers’ use of policies restricting employees’ use of social media.
In August 2011, January 2012 and May 2012 , the NLRB’s acting general counsel issued reports concerning social media cases. These reports, and the NLRB’s decisions that followed, suggest that the NLRB will find unlawful social media policies that enforce and/or restrict employees from posting information regarding the employer, even if that information is deemed by the company to be “confidential” or “non-public.”
Arguably, under the NLRB’s interpretation, an employee who takes to Facebook, Twitter or Myspace, bashing his or her supervisor before tens-of-thousands of people, for the way in which he is treated at the office, is protected from discipline or termination. Such action on the part of the employee is considered to be protected concerted activity. If however, that employee takes to the same social media sites and bashes the products being sold by the employer or he or she advises consumers not to buy the product in question, the employer may terminate that employee, as that is not protected speech covered by federal labor law.
In a relatively new case decision highlighting the NLRB’s increased focus on non-union employers, the NLRB ruled in DirecTV US DirecTV Holdings LLC, that certain policies maintained by DirecTV were unlawful restrictions on employees’ rights. The NLRB ordered DirecTV to cease and desist from promulgating and maintaining policies containing the following language:
• “Do not contact the media” and “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, Calif., who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments.”
• “Never discuss details about your job, company business or work projects with anyone outside the company. . . never give out information about . . . DIRECTV employees [and] employee records.”
• “Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations.”
• “Employees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record.”
With the NLRB’s expansive focus, both union and non-union employers should take notice of the NLRB’s decisions and reexamine their own policies to ensure that they remain compliant with recent decisions. How far the NLRB will go is anyone’s guess at this point, but for the next three years at least, union and non-union employers would be wise to adopt a pro-active approach to monitor and adapt their employment policies to conform with the NLRB’s decisions.
Article published by Greater Lansing Business Monthly in September 2013.
Attorney Aaron Davis recently joined Fraser Trebilcock as an associate attorney practicing in the areas of Labor and Employment Law and Commercial Litigation. He has served as co-chair of the Young Lawyers Division of the Chicago Bar Association. Davis has a B.A. in political science from Michigan State University, and received his J.D. from The John Marshall Law School in Chicago where he was the recipient of the CALI Award in Legislation and Political Thought.