Articles Discussing Protected Concerted Activity Under The NLRA.

More and more employers, union and non-union alike, are getting ensnared in efforts by the National Labor Relations Board (NLRB or “Board”) to aggressively expand employee rights under the National Labor Relations Act (“Act”), to the detriment of employers. While employees have the express right under Section 7 of the Act “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” such as discussing their terms and conditions of employment or lodging complaints about the workplace, the NLRB continues to condone bad behavior as “protected behavior” so long as it is tangentially related to concerted activity under the Act.

The ubiquity of smartphone applications (“apps”) that record audio and/or video – coupled with the risk of workplace discussions being uploaded to social media for all to hear – has led many employers to implement “no-recording” policies that prohibit employees from recording workplace interactions. It may come as a surprise to many employers, especially non-union employers, that a law from the 1930s, the National Labor Relations Act (“NLRA” or the “Act”) has recently been construed to generally prohibit broad bans on workplace recordings. In a recent decision addressing a company’s no-recording policy, the National Labor Relations Board’ (“NLRB” or “the Board”) held that such bans unlawfully interfere with the rights of employees — unionized or not — to engage in concerted activity regarding their terms and conditions of employment.

Obscenities alone—even when viewed by an employer’s customers—do not deprive employees engaged in protected concerted activity of the National Labor Relations Act’s (“NLRA” or the “Act”) protections. So held the U.S. Court of Appeals for the Second Circuit when recently affirming the National Labor Relations Board’s (“NLRB” or “the Board”) decision in Three D, LLC (Triple Play), 361 NLRB No. 31 (2014). The court also affirmed the Board’s decision to require an employer to meet a high standard of proof to justify terminating employees who make critical, and even false, statements about the employer while engaging in Section 7 activity in social media. Consequently, Triple Play has broadened employees’ ability to use social media to complain about work with impunity.

An employer lawfully prohibited employees who interact with customers from wearing t-shirts printed with the words “Inmate” and “Prisoner” and containing black and white horizontal stripes, a federal appeals court has held, rejecting a 2-1 decision of the National Labor Relations Board. In Southern New England Telephone Company v. National Labor Relations Board, No. 11-1099 (D.C. Cir. 2015), the court held that “it was reasonable for AT&T to believe that the ‘Inmate/Prisoner’ shirts may harm AT&T’s relations with its customers or its public image,” thereby permitting the company to restrict the employees’ right to don union-messaged apparel.

Executive Summary: It was probably not that surprising that the U.S. Court of Appeals for the District of Columbia reversed the National Labor Relations Board’s (NLRB) decision in Southern New England Telephone Company, 1356 NLRB No. 118 (2011). Of all the controversial decisions issued by the NLRB since President Obama was able to appoint a majority of the members on the five?member Board, none may have been perceived as more hostile to the business community than this decision.

After years of NLRB decisions protecting employees’ profanity-laced tirades and outright threats against management in social media stream-of-consciousness posts, the Board recently said “no.” In Richmond District Neighborhood Center, 361 NLRB No. 74 (2014), the NLRB upheld the ALJ’s decision that two employees’ Facebook plan for insubordination veered into the land of “unprotected” activity under the NLRA.

In its long-awaited Purple Communications decision, on September 24, 2014, the NLRB reserved judgment on the most anticipated issue in the case: the legality of the employer’s electronic communications policy prohibiting use of e-mail for any nonbusiness reason, and the continuing validity of the NLRB’s 2007 Register Guard decision. The Board had previously invited briefing from both the parties and amicus regarding whether to overrule or modify Register Guard, and it was anticipated the Board would address that issue in the Purple Communications decision.

With the intersection between cutting-edge social media and the Depression-era National Labor Relations Act (NLRA or the Act) still relatively new, employers are looking for answers to some fundamental questions when it comes to regulating employees’ off-duty social media posts about work. The National Labor Relations Board’s (NLRB or the Board) recent decision in Three D, LLC (Triple Play), 361 NLRB No. 31 (2014), answered two of those questions: (1) How far can employees go when posting social media content protected under Section 7 of the NLRA before their posts lose that protection?; and (2) Can employees who do nothing more than click on the ubiquitous thumbs-up icon to “Like” social media content claim the protections of Section 7 of the NLRA? In addition to answering these two critical questions, Triple Play provides useful guidance for employers on drafting a social media policy without raising a red flag for the NLRB.

In applying a standard Wright Line analysis of whether employee activity constitutes conduct protected by Section 7 of the NLRA, the Board, in Hitachi Capital America Corp. and Virginia Kish, 361 NLRB No. 19 (2014), has taken one of its factors to a new level. An employee was discharged for the tone of her e-mails to supervisors, which the employer concluded violated a rule prohibiting “inappropriate behavior” in the workplace.

In yet another case that impacts both union and non-union employers, the National Labor Relations Board (NLRB) recently found that an employee who asked coworkers for assistance in preserving evidence for a sex harassment complaint she planned to raise with her employer was engaged in “concerted activities” for “mutual aid and protection” under Section 7 of the National Labor Relations Act (NLRA). Fresh & Easy Neighborhood Market, Inc., 361 NLRB No. 12 (Aug. 11, 2014). In so doing, the NLRB broadened the scope of protections under the NLRA to cover employees who pursue claims against their employers under a multitude of other federal and state statutes that regulate the workplace.

A National Labor Relations Board (NLRB) Regional Director is pursuing a set of complaints against a Maryland-area contractor, accusing the contractor of retaliating against immigrant employees for bringing a Fair Labor Standards Act (FLSA) action and attempting to unionize. The matter has drawn the attention of local politicians and interest groups calling for additional workplace protections for undocumented workers.

Employers, struggling to regulate employees’ work-related social media postings, recently suffered a string of defeats in National Labor Relations Board (NLRB) cases challenging their social media and related communications policies. The six cases, decided in the past two months, which resulted in five losses1 and only one victory for employers,2 demonstrate that the NLRB continues to use social media and other common communications policies as a vehicle to aggressively inject itself into the non-union workplace as the number of unionized workers continues to diminish. These cases also highlight the need for all employers to scrutinize their social media policies in an effort to determine whether employees reasonably would read them to prohibit discussion about the terms and conditions of employment for the mutual aid and benefit of the workforce, the applicable standard under Section 7 of the National Labor Relations Act (NLRA or “the Act”) for protected concerted activity.

On remand from the Ninth Circuit, the National Labor Relations Board held for the second time that an employer violated the National Labor Relations Act by terminating an employee who engaged in a profane and insubordinate outburst. The Board required the employer to reinstate the employee with back pay and benefits. Plaza Auto Center, Inc. and Nick Aguirre, 360 NLRB No. 117 (May 28, 2014).

The NLRB recently held that an employer lawfully terminated an employee for intentionally violating an overbroad and unlawful confidentiality rule. Flex Frac Logistics, 360 NLRB No. 120 (May 30, 2014). While the Board’s decision is a welcome change of pace, the result is very fact-specific. The employer makes deliveries to energy companies for oil and gas drilling, using both directly-employed drivers and contractor-trucking companies. The employer required employees to sign an employment agreement containing a confidentiality clause prohibiting disclosure of financial information, as it was concerned with preserving the confidentiality of the rates it charges its clients. In a prior decision, the Board struck down the employer’s confidentiality rule as unlawfully overbroad, because it could be read to prohibit employees from discussing wages, hours, or other terms and conditions of employment. The Fifth Circuit later upheld the Board’s determination. See 358 NLRB No. 127, slip op at 3 (2012), enf’d., 746 F.3d 205 (5th Cir. 2014).

In Food Services of America, Inc., 360 NLRB No. 123 (May 30, 2014), a Board panel majority (Hirozawa, Schiffer) struck down an employer’s solicitation policy and concluded that instant messages between two employees involving job security are protected concerted activity under the National Labor Relations Act.