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NLRB General Counsel Issues Third Report on Social Media Cases

The National Labor Relations Board’s (NLRB’s) Acting General Counsel Lafe Solomon issued his third report on social media cases handled by the NLRB. Copies of all three memos are available here, here and here, in the order issued. Our previous blog post discussing the second memo can be found here.

The most recent, third report reviews 7 social media policies, Solomon’s finding 6, at least in part, violative of the National Labor Relations Act. Solomon found the seventh policy compliant with the Act and attached that full policy to his memo.

Extracted from the six “violation” cases are the following examples of impermissible elements of social media policies.

1. Rules Defining Confidential Information Too Broadly

Solomon invalidated the following provisions because rules limiting communications without clarifying or limiting language to “carve out” communications protected by federal labor law are unlawful. According to Solomon, employees could “read” the following as prohibiting discussions and disclosure of information regarding their own and others’ conditions of employment:

  • “Don’t release confidential guest, team member or company information….”
  • “You should never share confidential information with another team member unless they have a need to know the information to do their job.”
  • “Employees are prohibited from posting information regarding [Employer] on any social networking sites…that could be deemed material nonpublic information or any information that is considered confidential or proprietary.”
  • “Employees are permitted to express personal opinions regarding the workplace, work satisfaction or dissatisfaction, wages hours or work conditions with other [Employer] employees through Personal Electronic Communications, provided that access to such discussions is restricted to other [Employer] employees and not generally accessible to the public….”
  1. Rules Requiring the Accuracy of Employee Communications

To Solomon the following could improperly apply to inaccurate but not maliciously false discussions or criticism of the particular employer’s labor policies and treatment of employees:

  • “If you engage in a discussion related to [Employer], in addition to disclosing that you work for [Employer] and that your views are personal, you must also be sure that your posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site.

3. Rules Requiring Employees to Seek Guidance from Their Employer

In Solomon’s view, the following rule impermissibly required employees to secure permission from their employer prior to engaging in NLRA-protected activities:

  • “When in doubt about whether the information you are considering sharing falls into one of the [prohibited] categories, DO NOT POST. Check with [Employer] Communications or [Employer] Legal to see if it’s a good idea….”
  1. Rules Discouraging Communication or Requiring Reporting of Improper Communication

According toSolomon, the following provisions either discouraged employee communication or encouraged employees to report union activity by their peers.

  • “Think carefully about ‘friending’ co-workers”
  • “Don’t comment on any legal matters, including pending litigation or disputes.”
  • “You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers. [Employer] believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or other management-level personnel than by posting complaints on the Internet.”
  • “Report any unusual or inappropriate internal social media activity.”
  • “Employees, who receive unsolicited or inappropriate electronic communications from persons within or outside [Employer], should contact the President or the President’s designated agent.”
  1. Rules Restricting Communications with Government Officials or the Media

To Solomon the following rule restricted employees’ right to speak with the NLRB, other government agencies, or third parties about their working conditions, including going to the press, blogging, or speaking at a union rally:

  • “The General Counsel must be notified immediately of any communication involving federal, state or local agencies that contact any employee concerning the Company and/or relating to matters outside the scope of normal job responsibilities.”
  • “Similarly, you have the obligation to obtain the written authorization of the Corporate Communications Department before engaging in public communications regarding [Employer] of [sic] its business activities.”

6. Rule Prohibiting Posting of Photos or Videos

Solomon found invalid rules prohibiting employees from posting photos, music, videos, and the quotes and personal information of others without the owner’s permission and without making sure that the content could be shared legally, and from using the subject employer’s logos and trademarks. To him employees would reasonably interpret these provisions as forbidding the use of photos and videos of employees engaging in protected activities, including picket signs containing the employer’s logo. Despite the employer’s proprietary interest in its trademarks, including any trademarked logo, Solomon did not find that such non-commercial use of the logo or trademarks in protected activities would infringe on that property interest.