The NLRB Acting General Counsel's third memo on social media: Not so fast

The NLRB Acting General Counsel's third memo on social media: Not so fast

On May 30, 2012, Acting General Counsel ('AGC")  Solomon issued his third memo on employer social media policies under the National Labor Relations Act.  In that memo, he referenced the social media policies of several companies including General Motors.  With respect to the General Motors' policy, he found a number of the provisions to be unlawful under the Act. (See pp. 6-9 of the Memo)  On the same day the 3rd Memo was released, the administrative law judge ("ALJ") released his decision in a case involving this same policy.  Surprise; the two do not agree.

In his decision, the ALJ stated that there is no Board precedent directly addressing the application of § 8(a)(1) of the NLRA.  Agreeing with the AGC, the judge found that GM's policy entitled, " Use Good Judgment about What You Share and How You Share" is unlawful because of its requirement of confidentiality which may chill a discussion of wages and working conditions.  The requirement that posts be "complete and accurate" was found to be over reaching and places an unlawful restriction on employees' exercise of rights because false and inaccurate posts do not per se lose the protection of the Act.

The provision that required employees to check with the company if they are in doubt as to whether the information to be posted is prohibited can be reasonably read to require employees to secure permission before they engage in protected activity which is unlawful.  Finally, the provision prohibiting the posting of photos, videos, quotes, or personal information without the express permission of the maker is overly broad since employees could reasonably construe it as prohibiting hand-billing activity, statements in union literature, or comments by supervisors.  The judge also found that the "savings" clause stating that the policy was would be administered in compliance with applicable laws, including § 7 of the Act was not a shield to protect from violations of the Act.  Employees cannot be expected to know what conduct is protected under the Act which may result in employees abstaining from protected, concerted activity.

The judge found three other provisions to be lawful, contrary to the AGC.  In reviewing the issue of the prohibition of use of GM logos and trademarks, the judge noted that this was a novel issue.  The judge stated that the rule applies to all employees; that it was not the result of anti-union motivation; and that there was a bona fide explanation for its promulgation.  In the section entitled, "Treat Everyone with Respect," the judge noted that the provision stated that offensive, demeaning, abusive, or inappropriate remarks are as out of place online as they are off-line.  While recognizing that the line between permissible and impermissible as far as vagueness is a fine one, the judge held that the descriptive adjectives used made the policy permissible and that there was no mention made of management or supervisors or any suggestion that discouraged discussion of them.

The provision that employees "carefully think about friending co-workers" was considered valid.  The judge acknowledged that language is ambiguous but stated that the section speaks only of thought with no reference to discipline.  It is in the nature of advice rather than a mandate.  Finally, the judge found that the provision instructing employees to report unusual or inappropriate internal social media was on its face general and not linked to employees union or other protected activity.  He concluded, based on other precedent, that employees would not reasonably conclude that protected activity would be covered under "unusual or inappropriate."

The AGC went 2-4 in the case before the judge, hardly a winning record or one that would convince employers that his memos are the accurate reflection of Board law.  The three advice memos on social media should be taken as that--advice.  They are indicative of the facts on which cases will be brought.  The actual law of social media under the NLRA is a work in progress.

For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.

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