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NAW News

Legal Update

- April 2012

Federal Appeals Court Delays Enforcement of NLRB’s Notice Posting Rule; South Carolina District Court Declares NLRB Rule Unlawful

On April 17, 2012, the U.S. Court of Appeals for the District of Columbia issued an injunction to delay enforcement of the National Labor Relations Board’s notice posting rule, pending the outcome of the appeal of a lower court ruling. The legal issue under review is whether the NLRB has sufficient rulemaking authority under the National Labor Relations Act (NLRA) to require most private sector employers (whether or not they have union workers) to post workplace notices that inform employees of their rights to join or organize a union. The April 30, 2012 deadline for employers to post these workplace notices has now been postponed by the appeals court until the court hears the appeal and issues its decision, which will be later this year at the earliest. (National Association of Manufacturers v. NLRB, Docket No. 12-5068).

Several business organizations, including the Coalition for a Democratic Workplace (CDW-which NAW helps manage), challenged the NLRB rule and its enforcement provisions in the D.C. federal district court. On March 3, 2012, the district court ruled that the NLRB had statutory authority under the NLRA to require employers to post the prescribed notice in the workplace. However, the district court did strike down several enforcement sanctions in the NLRB rule. (For additional information on the district court’s ruling, see NAW’s Legal Advisory here.)

On March 5, 2012, CDW and other business organizations appealed this ruling to the D.C. Court of Appeals and sought an emergency court order to delay the April 30, 2012 enforcement date until the appeal is decided. In granting the emergency order, the appeals court cited a South Carolina federal district court decision (discussed below) that declared the notice posting rule is unlawful because Congress did not give the NLRB the authority to impose such a mandate on private employers. The court also established an expedited briefing schedule for the parties and set the case for oral argument in September 2012.

South Carolina District Court Voids NLRB Notice Posting Rule

In a similar case challenging the NLRB’s notice posting rule, on April 13, 2012 a Charleston, South Carolina federal district court judge ruled the NLRB cannot force private employers to post workplace notices informing workers about their rights to join or form a union. (Chamber of Commerce of the United States v. NLRB). In a well-reasoned thirty-one page opinion, Chief Judge David C. Norton said imposing this mandate on six million businesses exceeds the federal agency’s authority. “There is not a single trace of statutory text [in the National Labor Relations Act] that indicates Congress intended for the Board to proactively regulate employers in this manner,” according to the court’s decision.

To the contrary, since enactment in 1934 the NLRA has not included a notice posting requirement while at least 9 other federal labor statutes have expressly included such a requirement. According to the court, “Congress clearly knows how to include a notice posting requirement in a federal labor statute when it so desires.” The NLRA’s “silence” on this issue means Congress did not intend to give the NLRB the power to force employers to post such notices, nor for past seventy-five years has the agency thought it had this regulatory muscle to flex.

In granting the plaintiff’s motion for summary judgment, Judge Norton ruled the NLRB’s notice posting rule, in its entirety, was unlawful and unenforceable. The court’s decision may be viewed here.

Conclusion

The delay in enforcement of the NLRB notice posting mandate is a relief to millions of employers faced with deciding whether or not to post the notice, given the conflicting federal district court decisions in the District of Columbia and South Carolina. The D.C. Court of Appeals’ injunction eliminates that uncertainty—while the appeal is pending, the NLRB rule is not enforceable and no notice posting is required.


Federal Labor Law Protects Employee Use of Social Media to Discuss Work Conditions

The National Labor Relations Act (Act) applies to most private-sector employers—whether or not the employees are represented by a union. The Act protects the rights of employees to communicate with each other about wages, hours and other terms and conditions of employment. Section 7 of the Act states in part:

“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.” 

An employer may not interfere with, restrain, discipline or terminate an employee because the employee engages in “concerted activities” or otherwise exercises his or her section 7 rights. The source of interference may be a policy or work rule that is overly broad and could be interpreted by employees to prohibit activity protected by the Act. An employer who does interfere with protected activity may end up defending an employee’s unfair labor practice charge filed with the National Labor Relations Board (NLRB).

Employee Use of Social Media

An employee’s postings on Facebook, Twitter or other social media concerning wages, hours or working conditions that is intended for viewing by co-workers is subject to the Act’s protection as “concerted activity”. For example, the NLRB accused an ambulance service of illegally firing an employee (a Teamsters union member) after she criticized her supervisor on her Facebook page, using several vulgarities to criticize him. The posting drew several comments from co-workers that led to further negative comments about the supervisor. Company policy prohibited employees from making any disparaging or discriminatory comments to anyone when discussing the company, supervisors or co-workers. The case was settled with the employer agreeing to revise its social media policy and further agreeing not to discipline or discharge employees for engaging in discussions about work issues that are protected by the Act. (American Medical Response of Connecticut).

In another case, an employer discharged five employees for Facebook postings made on their own computers outside of working hours that criticized their working conditions and complained about a co-worker. In turn, this co-worker complained about the job performance of several of the fired employees. An NLRB administrative law judge ruled that the terminations violated the Act because the employees were engaged in protected concerted activity, namely, an electronic conversation among employees about their working conditions and another co-worker. The fact that some Facebook viewers that saw the postings were not employees did not change the result. The employer was ordered to reinstate the five employees with back pay and restoration of benefits. (Hispanics United Buffalo, Inc.).

Overly-Broad Social Media Policies

An employer with an overly-broad policy on employee use of social media may also be in violation of the Act, even if the policy does not expressly prohibit an employee from discussing wages, hours and working conditions, and even though the policy has never been interpreted or enforced to restrain such activity. When an employer’s policy or work rules are likely to have a chilling effect on the exercise of section 7 rights, the NLRB may find their maintenance is an unfair labor practice. For example, a policy that required employees to recognize and protect the confidentiality of any information concerning the employer or its employees was deemed overly-broad by the NLRB because it could be reasonably interpreted to prevent an employee from discussing working conditions or unionization with other employees.

Policy Disclaimers

A “disclaimer” in the policy may not be sufficient to avoid a violation of the Act. For example, an employer’s social media policy prohibited employees from commenting on work-related legal matters without express permission from the Legal Department, and then added this bold-printed disclaimer, “This policy will not be construed or applied in a way that interferes with employees’ rights under federal law.” The policy was ruled illegal because a legal matter could include employee lawsuits or complaints filed against the employer concerning employment practices, discussion of which is protected by section 7. The disclaimer was inadequate, according to the administrative law judge, because “…it cannot be assumed that lay employees have the knowledge to discern what is a federal law, and thus permitted under the disclaimer.” (G4S Secure Solutions (USA) Inc.).

Finally, the NLRB acting general counsel has issued three reports analyzing the Board’s recent enforcement actions involving employer implementation and enforcement of policies that regulate employee use of social media to discuss workplace issues. The reports set out various social media policy provisions and other work rules that the NLRB considers overly-broad and unlawful restraints on employee rights to make work-related statements on social media platforms. The first two reports may be viewed at:

http://mynlrb.nlrb.gov/link/document.aspx/09031d458056e743 and
http://www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report

The third report issued on May 30, 2012 contains the acting general counsel’s analysis of numerous actual employer policies and rules governing topics such as employee use of social media to discuss workplace issues, confidentiality, privacy, commenting on legal matters and contact with the media or government agencies. The report then expresses counsel’s opinion whether the cited policies are lawful or not. It also includes one company’s social media policy that counsel believes is lawful. The report is here.

Although this report is intended to provide helpful guidance, employers are well advised to consult with their own legal counsel for professional advice when adopting or revising employment policies and work rules.