NLRB’s Acting General Counsel Issues Second Report on Social Media Cases

By Edwin S. Hoposon

Late last month, the Acting General Counsel of the National Labor Relations Board, Lafe Solomon issued a second report describing social media cases reviewed by his office.  The Memorandum covered 14 cases, 7 of which involved questions about employer social media policies. Five of those social media policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised by the company.

The remaining 7 cases involved the discharge of employees after they posted comments to a Facebook page. Several discharges were found to be unlawful because they flowed from unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not found to be work-related.

The Acting General Counsel’s report underscored two points made in his first compilation of cases issued August 18, 2011, namely:

 –Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.

–An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

 In one case, Solomon stated:

“The Employer’s rule prohibited “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.” We concluded that this rule was unlawful because it would reasonably be construed to restrict Section 7 activity, such as statements that the Employer is, for example, not treating employees fairly or paying them sufficiently. Further, the rule contained no limiting language that would clarify to employees that the rule does not restrict Section 7 rights.”

 In that case, the employee involved had posted a complaint about her employer on her Facebook page using expletives.  Some 10 co-workers were “friends” and at least one responded to the posting.  The employee was discharged over the posting.  The Acting General Counsel found the discharge unlawful based on the fact that the firing was based on an unlawfully overbroad non-disparagement rule and that the employee was engaged in protected concerted activity in making the posting.

In another case, the employer’s discharge of the charging party for her Facebook comments was found to be lawful since the employee had not been engaged in protected concerted activity. However, the social media policy and its no-solicitation rule were found to be unlawfully overbroad.

Solomon stated in his press release that he has asked all NLRB regional offices to forward cases which the regional directors believe to be meritorious social media cases to the NLRB’s Division of Advice in Washington D.C. for review.  In this way, Solomon stated, the NLRB can better track such cases and devise a consistent approach. According to Solomon, thus far some 75 cases have been forwarded to the Division of Advice.

The report emphasizes that it represents the Acting General Counsel’s interpretation of the National Labor Relations Act.  There are currently three cases involving social media questions pending before the Board, which should provide further guidance under the Act for such cases.

The full report can be found at: 

 Operations Management Memo

NLRB Rules For Employer Finding No Obligation To Reinstate Or Pay Backpay to Illegal Aliens

By Edwin S. Hopson

On August 09, 2011, the National Labor Relations Board issued its decision in Mezonos Maven Bakery, 357 NLRB No. 47 (2011), in which it held that the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137(2002) was binding upon the Board in deciding that it lacked the authority to award backpay to undocumented immigrant workers whose rights under the National Labor Relations Act had been violated.  This was found to be so even if the employer knew at the time the undocumented workers were hired that they lacked employability with the meaning of the Immigration Reform and Control Act of 1986 (IRCA).

On February 12, 2003, seven employees who worked for Mezonos Maven Bakery were discharged after complaining about treatment they were receiving from a supervisor.  Charges were filed alleging a violation of the Act over this retaliation for engaging in protected concerted activity.  The case was settled but the employer later refused to offer reinstatement or backpay citing the fact that the seven employees were undocumented workers.  An NLRB Administrative Law Judge ruled against Mezonos Maven Bakery and it appealed to the Board, which ruled for the Bakery.

However, two of the NLRB’s three member panel, Chairman Liebman and Member Gaston, criticized the Supreme Court’s 2002 ruling, stating “in addition to the obvious failure to make employee-victims whole the Act’s enforcement is undermined, employees are chilled in the exercise of their Section 7 rights, the workforce is fragmented, and a vital check on workplace abuses is removed.”  Member Hayes refused to join in that criticism stating “it is the Board’s role to enforce this controlling precedent in adjudicatory proceedings without critical comment.  It is the role of Congress to determine whether to alter the law in response to the Court’s decision.”

Liebman and Gaston also postulated that they “would be willing to consider in a future case any remedy within our statutory powers that would prevent an employer that discriminates against undocumented workers because of their protected activity from being unjustly enriched by its unlawful conduct.”  Hayes also refused to speculate about future other possible remedies.

Is that an Escaped Prisoner or the Telephone Repairman at My Door?

By Tyson Gorman

In The Southern New England Telephone Company d/b/a AT&T Connecticut (AT&T East), 356 NLRB No. 118 (2011) issued March 24, 2011, a divided three member panel of the National Labor Relations Board adopted the decision of the Administrative Law Judge finding that AT&T service technicians who were wearing “prisoner” and other protest t-shirts while working to highlight labor issues with the company were engaged in protected activity within the meaning of Section 8(a)(1).

 AT&T had suspended 183 employees for wearing the “prisoner” and two other (“Havoc” and “Scab”) shirts while working. The subject prisoner shirts were plain white and listed only “Inmate #____” on the front and had “Prisoner of AT$T” with vertical stripes on the back.  The company was ordered to post a notice advising employees of their rights to wear the shirts, rescind all suspensions, and pay backpay.

Member Brian E. Hayes observed in dissent, “[i]t is well established that, although employees have a protected right under Section 7 of the Act to wear union insignia while working, an employer may limit this activity if it establishes ‘special circumstances’ that justify the limitation imposed” (citing Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945)).  Member Hayes felt the special circumstances exception applied in this case. 

However, the majority, consisting of Chairman Wilma B. Liebman and Member Craig Becker, found that AT& T failed to demonstrate sufficient “special circumstances” to justify prohibition of wearing the shirt and thereby violated Section 8(a)(1) of the Act. The majority determined the shirt “was not reasonably likely, under the circumstances, to cause fear and alarm among [AT&T] customers.” It noted the shirt looked very little like actual prison garb and that the subject technicians normally arrived at customers’ homes, in AT&T branded trucks, only after an appointment had been made and a confirming phone call received.  The majority distinguished this situation from Pathmark Stores, 342 NLRB 378 (2004), where special circumstances were found allowing a grocer to restrict employees from wearing “Don’t Cheat About the Meat” T-shirts while working.