Articles Discussing Protected Concerted Activity Under The NLRA.

xecutive Summary: An administrative law judge recently ruled that a Pacific Northwest fast food chain violated the National Labor Relations Act (NLRA) by maintaining a policy that prohibited off-duty employees from loitering or “hanging out” on store property, even though no employee was actually disciplined for violating the policy.

The National Labor Relations Board has denied a motion for summary judgment by the NLRB’s General Counsel in a case involving Mercedes-Benz U.S. International Inc.’s maintenance of an employee handbook rule prohibiting the use of cameras and video recording devices without prior approval.

xecutive Summary: On April 21, 2017, the United States Court of Appeals for the Second Circuit in National Labor Relations Board v. Pier Sixty, LLC, enforced an order of the National Labor Relations Board (NLRB) finding that an employee did not lose the protections of the National Labor Relations Act (Act) by posting a derogatory comment about his supervisor on Facebook while encouraging his co-workers to vote for the union in an upcoming election and in concluding that the employer violated the Act by discharging the employee. The Court of Appeals stated that the employer “failed to meet its burden of showing that Perez’s [the employee’s] behavior was so egregious as to lose the protection of the NLRA under the Board’s ‘totality-of-the-circumstances’ test.”

In a ruling that affects both union and non-union employers, the U.S. Court of Appeals for the D.C. Circuit recently held in Banner Health System v. NLRB that employers may not prohibit employees from discussing information related to employees’ salaries and discipline. While this decision does not break new ground, it does provide employers with some guidance on how the D.C. Circuit will scrutinize efforts to maintain confidentiality surrounding HR investigations.

In the first few weeks of the Trump Presidency, there have been numerous marches, protests and other forms of political advocacy expressing views both in support of and in opposition to the President’s various appointments, executive orders and other actions. Employers concerned about protests potentially planned for the next few months and political advocacy in general understandably have questions surrounding how political demonstrations may affect their workplaces.

A divided panel of the U.S. Court of Appeals for the First Circuit has upheld a National Labor Relations Board decision that a Massachusetts automobile dealer’s policy banning the wearing of “message pins” violated union insignia protections under the National Labor Relations Act. Boch Imports, Inc., d/b/a Boch Honda v. NLRB, Nos. 15-1653, 15-1721 (1st Cir. June 17, 2016).

The legality of employer work rules continues to draw National Labor Relations Board scrutiny on a regular basis.

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.