Articles Discussing Protected Concerted Activity Under The NLRA.

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.

My colleagues and I have noted repeatedly over the past couple of years that the National Labor Relations Board takes a very expansive view of the National Labor Relations Act, even (and perhaps especially) when the case does not involve a union or any union activity at all.

Executive Summary: On May 1, 2014, the National Labor Relations Board (NLRB) issued an order finding that Piedmont Gardens, a retirement community, violated § 8(a)(1) of the National Labor Relations Act (NLRA) when it implemented and enforced a policy restricting off-duty employee access to its property without prior supervisor authorization.

It has been a difficult last few years for the National Labor Relations Board (NLRB). Not only are hundreds of decisions of the agency in limbo due to a Supreme Court challenge involving President Barack Obama’s purported recess appointment of several members of the agency while the U.S. Senate was still convening in regular pro forma session, but several of the agency’s rulings have been invalidated by various Circuit Courts of Appeal. The board recently managed to win one, however, as the U.S. Court of Appeals for the Fifth Circuit upheld a board decision that a company’s employee confidentiality policy was an unfair labor practice in violation of Section 8(a)(1) of the National Labor Relations Act (NLRA). The case serves as a reminder to employers to review their own employee confidentially policies.

A trio of recent cases highlights the National Labor Relations Board’s current focus on employer work rules and conduct policies. Under Section 8(a)(1) of the National Labor Relations Act, workplace rules that “explicitly restrict” an employee’s exercise of protected concerted activity are unlawful. Even workplace rules that do not explicitly limit employees’ rights may be illegal if employees reasonably would understand the rules to prohibit such activity. The NLRB’s two-member Republican minority and its three-member Democrat majority differ sharply on that point.

The National Labor Relations Board (the Board) recently issued yet another decision invalidating common handbook policies and work rules. This case is the most recent in a long series of cases striking down common rules governing employee conduct. In Hills and Dales General Hospital, 360 NLRB No. 70 (Apr. 1, 2014), the Board held that three provisions in a non-union hospital’s Values and Standards of Behavior Policy (the Policy) were invalid on their face because employees could reasonably construe the provisions to prohibit employees from engaging in protected concerted activities.