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NLRB's Solomon Tackles Social Media Cases, Gives Wal-Mart Policy Revision Green Light

Monday, June 4, 2012

By Lawrence E. Dubé  

National Labor Relations Board Acting General Counsel Lafe E. Solomon May 30 issued a new report on employees' social media use, describing six corporate policies that he alleged interfered with the rights of workers under the National Labor Relations Act, and one revised policy statement that he found was lawful.

In Memorandum OM 12-59, Solomon's third report on social media in less than a year, the acting general counsel continued to take the position that overbroad company rules and policy statements violate the NLRA where employees would reasonably interpret them as limiting their exercise of rights guaranteed by the federal labor law.

But Solomon found that Wal-Mart Stores Inc. avoided an unfair labor practice when it adopted a revised social media policy for its U.S. employees that is both unambiguous and lawful.

The general counsel's office investigates unfair labor practice charges and decides whether to issue complaints to be considered by NLRB administrative law judges and the board.

Solomon's Third Report on 'Hot Topic.'

Solomon's first report (Memorandum OM 11-74) on the use of social media was issued in August 2011, and summarized actions of the acting general counsel in 14 cases over a one-year period.

The second report (Memorandum OM 12-31), issued Jan. 24, offered an update on 14 more cases. Solomon wrote in the second report that “these issues and their treatment by the NLRB continue to be a 'hot topic' among practitioners, human resource professionals, the media, and the public” (30 HRR 91, 1/30/12).

In the new report, Solomon repeated his earlier guidance that an employer violates Section 8(a)(1) of the NLRA by interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the act to engage in union activity or protected concerted activity for their mutual aid or protection.

Confidentiality Rules May Violate NLRA.

In the first case (Target Corp., No. 29-CA-030713) addressed in Solomon's new report, the employer had an employee handbook section titled “Communicating confidential information.” The handbook made no mention of unions or Section 7 activity, but the acting general counsel said portions of the language were unlawful.

The handbook told employees to “[m]ake sure someone needs to know” before sharing confidential information with co-workers. Solomon said the language was overbroad. “Employees would construe these provisions as prohibiting them from discussing information regarding their terms and conditions of employment,” the acting general counsel said.

The employer's handbook also warned employees, “We're serious about the appropriate use, storage and communication of confidential information,” and cautioned that employees could be disciplined, discharged or “subject to legal action, including criminal prosecution” for violating the employer's policy or failing to report policy breaches.

Solomon said the sanctions “would be construed as requiring employees to report a breach of the rules governing the communication of confidential information set forth above.” He added that “[s]ince we found those rules unlawful, the reporting requirement is likewise unlawful.”

ALJ Backed Complaint Against General Motors.

In General Motors LLC (No. 7-CA-53570), the employer maintained a social media policy that told employees any online postings by employees should be “completely accurate and not misleading” and should not reveal “non-public company information” on any “public site.”

Nonpublic information was defined to include information “related to” the company's financial performance, as well as personal information about employees. The policy also advised employees that if they were in doubt about posting information, they should not take action. Instead, employees were advised to check with corporate communications or legal representatives “to see if it's a good idea.”

The acting general counsel said the board has prohibited requiring employees to secure permission before exercising Section 7 rights, and he concluded portions of the GM policy were unlawful.

The same day Solomon's memorandum was issued, an NLRB administrative law judge issued a decision sustaining the acting general counsel's allegation that GM had violated Section 8(a)(1) of the NLRA.

Tone and Content Rules May Affect Employee Rights.

In several other cases, Solomon found that employer attempts to police or moderate the tone or content of online communications violated the NLRA.

In McKesson Corp. (No. 6-CA-66504), an employer policy instructed employees, “Don't pick fights” and reminded employees to communicate in a “professional tone” without making “objectionable or inflammatory” comments.

Solomon concluded that this provision and others were unlawful, observing that “[d]iscussions about working conditions or unionism have the potential to become just as heated or controversial as discussions about politics and religion.” Without further clarification of what is “objectionable or inflammatory,” he said, “employees would reasonably construe this rule to prohibit robust but protected discussions about working conditions or unionism.”

Vague Rules Unlawful, but Bullying Ban Legitimate.

In Clearwater Paper Corp. (No. 19-CA-64418), the acting general counsel found that maintaining a rule prohibiting employees from posting information about an employer that was “material non-public information” or was “confidential or proprietary” interfered with employees' Section 7 rights.

The first restriction, Solomon said, was so vague that employees would reasonably understand it to bar disclosures concerning their working conditions. Similarly, he said, a prohibition on disclosure of “confidential” information, unless clarified, would be understood to cover employees' employment conditions.

Solomon found, however, that Clearwater's prohibition on “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace … even if it is done after hours, from home and on home computers,” did not violate the NLRA because it “would not reasonably be construed to apply to Section 7 activity” and because the rule gave employees an illustrative list of prohibited acts, such as bullying and discrimination.

Public Statements, Press Contacts Considered.

In Us Helping Us (No. 5-CA-36595), Solomon found that an employer policy requiring employees to report to management any “unsolicited or inappropriate electronic communications” they received violated the act. Employees would reasonably understand the rule to restrain their exercise of a right “to communicate with their fellow employees and third parties, such as a union, regarding terms and conditions of employment,” he wrote.

But Solomon said the employer lawfully maintained a restriction on internet postings that required employees to secure company approval for any statements made in the employer's name “or in a manner that could reasonably be attributed” to the employer.

In the last of the cases in which Solomon found employer unfair labor practices, DISH Network (No. 16-CA-66142), he said the employer violated Section 8(a)(1) by maintaining a rule that prohibited “disparaging or defamatory” comments, as well as a lengthy policy that restricted employees from speaking to press or media representatives without prior authorization.

“While an employer has a legitimate need to control the release of certain information regarding its business, this rule goes too far,” Solomon wrote. “Employees have a protected right to seek help from third parties regarding their working conditions,” he said, including “going to the press, blogging, speaking at a union rally, etc.”

Stating “Section 7 protects employee communications to the public that are part of and related to an ongoing labor dispute,” the acting general counsel concluded that an employer policy barring or limiting employee access to the media “is therefore unlawfully overbroad.”

Wal-Mart Policy Passed NLRA Challenge.

But Solomon found that Wal-Mart recently developed a two-page social media policy that gives employees clear notice of prohibited behavior “without burdening protected communications about terms and conditions of employment.”

According to a May 30 Division of Advice memorandum in Walmart (No. 11-CA-67171) that was posted on NLRB's website the same day as Solomon's report, an unnamed former employee filed an unfair labor practice charging that the company promulgated a July 2010 social media policy that violated the NLRA. The former employee also alleged the company fired him illegally because of comments he posted on his Facebook page.

But Wal-Mart adopted a revised policy after the charge was filed, and the acting general counsel concluded the revision is lawful. Finding the substitution of the lawful rule made it unnecessary to resolve the legality of the Wal-Mart policy that preceded it, the acting general counsel also rejected the employee's discharge claim since his online comments were not work-related or protected under the NLRA.

Wal-Mart's two-page policy, bearing a notation that it was updated May 4, applies to all “associates” of Wal-Mart Stores Inc. and subsidiaries in the United States. The policy forbids “inappropriate postings” including “discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct.” Violations, the policy warns, may result in discipline or discharge of an employee.

Employees are instructed by the Wal-Mart policy to “be fair and courteous” to fellow employees and others and are told they “are more likely” to resolve work-related complaints by speaking directly to co-workers or using a Wal-Mart open-door policy “than by posting complaints to a social media outlet.”

The policy prohibits communications that “reasonably could be viewed as malicious, obscene, threatening, or intimidating” as well as those that “disparage” individuals, including employees, “or that might constitute harassment or bullying.”

In his social media report, Solomon said Wal-Mart's revised policy is not ambiguous because “it provides sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rules to prohibit Section 7 activity.”

Citing the company's prohibition of “inappropriate” postings and the company's identification of “discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct” as examples, Solomon said maintaining such language does not violate Section 8(a)(1) of the act.

Solomon said the company's exhortation for employees to be “fair and courteous” when posting comments or other online material “could be overly broad,” but he concluded that the company provided “sufficient examples of plainly egregious conduct so that employees would not reasonably construe the rule to prohibit Section 7 conduct.”

The acting general counsel also concluded that the retailer's revised social media policy maintains the confidentiality of trade secrets and other confidential information without violating the NLRA.

By Lawrence E. Dubé  


Text of Memorandum OM 12-59 is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-8utm4y. The advice memorandum is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-8utm6f. The ALJ ruling in the GM case is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-8utq8c.

 

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