Congress enacted the National Labor Relations Act (“NLRA”) in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.
In October 2010, the General Counsel of the NLRB issued an Advice Memorandum to a Regional Director of the NLRB regarding a case in Connecticut. The General Counsel of the Board is appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel of the Board exercises general supervision over all attorneys employed by the Board (other than administrative law judges and legal assistants to Board members) and over the officers and employees in the regional offices. And have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 10 [section 160 of this title], and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law.
The two major tenets of the NLRA are Sections 7 and 8 listed as follows: Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title]. Sec. 8. (a) [Unfair labor practices by employer] It shall be an unfair labor practice for an employer to, in relevant part: (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [section 157 of this title].
The General Counsel opined on an employee discharge case at American Medical Response of Connecticut. The relevant complaint involved the “Blogging and Internet Posting Policy” listed as follows: The AMR employee handbook also contains a section entitled “Blogging and Internet Posting Policy.” The provisions below have been alleged as unlawful: (i) Employees are prohibited from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way, including but not limited to a Company uniform, corporate logo or an ambulance, unless the employee receives written approval from the EMSC Vice President of Corporate Communications in advance of the posting; (ii) Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.
The General Counsel concluded that the Employer violated Section 8(a)(1) of the Act by maintaining its blogging and Internet posting and standards-of-conduct policies, as well its policy of limiting employee solicitation to certain bulletin boards because they either explicitly prohibit Section 7 activity or employees would reasonably construe them as prohibiting Section 7 activity. Further, he concluded that the Employer’s prohibition of all solicitation over its e-mail system did not violate Section 8(a)(1).
He continued that an employer violates Section 8(a)(1) of the Act through the maintenance of a work rule if that rule would “reasonably tend to chill employees in the exercise of their Section 7 rights.” The Board has developed a two-step inquiry to determine if a work rule would have such an effect. First, as a rule it is unlawful if it explicitly restricts Section 7 activities. If the rule does not explicitly restrict protected activities, it will violate the Act only upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. The first challenged bullet of the Blogging and Internet policy states that “[e]mployees are prohibited from posting pictures of themselves in any media . . . which depicts the Company in any way, including but not limited to a Company uniform, corporate logo, or an ambulance.” We conclude that this language restricts the Section 7 rights of employees in violation of Section 8(a) (1) because it would prohibit an employee from engaging in protected activity; for example, an employee would be prohibited from posting a picture of employees carrying a picket sign depicting the Company’s name, or wearing a t-shirt portraying the company’s logo in connection with a protest involving the terms and conditions of employment.
In Summary, social media policies should be structured similar to e-mail policies. If employees are using the company system then the company prohibition policy is allowed, and the company is responsible for all contents. For employee-owned communication systems, the company is not liable for its contents, because to restrict this type of communication is a violation of federal labor laws.
VERY CHEAP
