In Design Technology Group LLC (Bettie Page Clothing), the panel (Board) heading the NLRB's judicial and election functions issued a decision and order in which it adopted the reasoning and conclusions of an earlier invalid Board panel (359 N.L.R.B. slip op. 96 (Apr. 19, 2013); also see Legal Update, Facebook Complaints about Supervisor Were Concerted and Protected; Employer Cannot Claim Entrapment: NLRB). The April 19, 2013 decision and order was invalid because the Board then was composed of two persons whose appointments the Supreme Court held constitutionally infirm in NLRB v. Noel Canning (134 S.Ct. 2550 (2014); also see Article, Expert Q&A on Noel Canning and Its Aftermath and Legal Update, Supreme Court Holds 2012 Recess Appointments to the NLRB Were Invalid, Effectively Invalidates 20-Months of NLRB Decisions). The Board found that employees' complaints on Facebook about their supervisor was protected concerted activity. (361 N.L.R.B. slip op. 79 (Oct. 31, 2014).)

A three-member panel of the Board (Chairman Pearce and Members Hirozawa and Schiffer):

In the original Board decision in this matter, Member Block urged that the employer be held liable for a separate unfair labor practice (ULP) for its handbook’s confidentiality provisions and ordered separately to remedy that violation, even though that issue was not alleged or litigated. Member Block's argument was not adopted, nor referenced, in the Board's new decision.

In this decision, the Board, without a new analysis, relies on Triple Play. Triple Play will likely be the Board's lead social media decision as it continues to reissue its 2012-13 social media cases in light of Noel Canning.

The Board did not reference the employer's purported entrapment defense rooted in the employer's assertion that the employees lacked an honest and reasonable belief that they were complaining on Facebook for mutual aid and protection and schemed to have the employer fire them for their Facebook posts. The new Board panel thought as little, or less of the theory than the original panel.

Not surprisingly, this decision expressly declines to adopt the former decision's reliance on several 2012-13 decisions that also likely will be reissued in light of Noel Canning.

The Board's observation that its proposed broad order to remedy the wage and salary disclosure handbook provision would require the employer to rescind other arguably unlawful handbook provisions that were not the subject of a ULP charge or litigated in this proceeding appears to enlarge the scope of the compliance phase in this case. Specifically, the Board ordered that the employer rescind any rule that forbids employees from disclosing wages and compensation to each other or third parties or "in any like or related manner interfering with" employees exercising Section 7 rights under the NLRA. The observation tacitly tasks NLRB agents in the compliance phase of ULP cases to scrutinize all of the employer's employment policies even though the Board held only one provision violated Section 8(a)(1) of the NLRA.

The Board easily substituted older precedent for 2012-13 precedent regarding overbroad confidentiality provisions and wage and salary disclosure restrictions. This decision should remind employers that the Board has long held that employers generally cannot forbid employees from discussing and disclosing their wage and salary data. The prohibition was not swept away with the Noel Canning-invalidated decisions.

Federal contractors concerned about the DOL's Office of Federal Contract Compliance Program's (OFCCP) pending regulations prohibiting pay secrecy policies and retaliation against employees who discuss their wages with others (see Legal Update, OFCCP Proposes Rule to Prohibit Pay Secrecy Policies and Practices by Federal Contractors and Subcontractors) should also recognize that they likely already have very similar legal obligations under the NLRA.