Employer beware: NLRA rulings often conflict with existing employer policies

published in McAfee & Taft EmployerLINC | February 20, 2015

TechnologyOne of the biggest misconceptions employers have is that the National Labor Relations Act (NLRA) only applies to unionized employers.  As a result, employers may hear of an adverse ruling from the National Labor Relations Board – or NLRB, the federal agency that issues rulings regarding the NLRA – and simply ignore it. This attitude can be dangerous because certain portions of the National Labor Relations Act apply to both unionized and non-unionized employers alike.

The portion of the NLRA of most concern to non-unionized employers is the provision regarding “concerted activity.”  Section 7 of the NLRA states that “[e]mployees shall have the right to… engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  On its own, this provision does not sound particularly menacing.  But NLRB application of the law has been very broad, especially under the current administration.  This broad interpretation has led to employee-friendly rulings that conflict with common employer policies.  In addition, employers cannot retaliate against employees for participating in concerted activity, meaning the broad rulings have an impact on employment decisions as well.

The broadening of Section 7 rights comes at a time when technology is changing the way people communicate.  What once would have been a private in-person or phone conversation is now an online posting in a public forum.  The NLRB has interpreted these public posts and their replies by co-workers – often on Facebook – to be protected in the same way as more traditional, private communications.

Because of rapid changes in technology, many employers have tried to avoid potential problems by creating social media policies. These policies may apply inside and outside of the workplace, or may regulate the use of company-owned equipment.  The NLRB has taken aim at these types of policies.  The Board has frequently take the position that social media policies that could be interpreted by employees as barring discussions about the terms and conditions of employment violate Section 7 of the NRLA and must be revised.  As a result, the Board has recently required employers to allow employees to use company email systems as a forum for these protected discussions.  In other words, policies created to eliminate potential problems are, at least in the eyes of the NLRB, problems themselves.

But not all NLRB rulings relating to social media have been unfavorable to employers.  For example, in Richmond District Neighborhood Center, two employees had been given an offer to work another year at a teen center that provided afterschool and summer activities to high school students.  After receiving the offer, the two employees engaged in a public Facebook conversation regarding their jobs.  The exchange can be described as a profanity-laced, slang-filled, anti-management tirade.  The NLRB recognized that sometimes even concerted activity can be “so egregious” that it is no longer protected by Section 7.  The Board noted that the posts contained “numerous statements advocating insubordination.”  It further noted the employees were “unfit for service.”

Unfortunately, even employer-friendly rulings from the NLRB can have a not-so-silver lining.  This case presents a few important takeaways for management to consider.  First, the NLRB reaffirmed its position that Facebook posts between employees are concerted activity if they relate to terms and conditions of employment.  Second, the Board did not rely on the profanity or the disparaging characterizations of administrative or managerial personnel in determining that the postings fell outside of Section 7 protections.  The Board seems to be saying that the use of profanity or disparaging comments in a public forum may not, in and of itself, be grounds for termination.  The Board expects management to have thick skin with regards to concerted activity.

Getting hit with a charge from the NLRB puts employers in the unenviable position of investing time and resources to defend charges while also changing policies.  The best practice to avoid this position is for all employers, not just unionized employers, to regularly review policies regulating the conduct of employees—particularly those regarding social media.