Employee Electronic Communications Under the National Labor Relations Act | Practical Law

Employee Electronic Communications Under the National Labor Relations Act | Practical Law

This Practice Note outlines unionized and nonunionized employees' rights under the National Labor Relations Act (NLRA) to communicate and how employees may forfeit those rights. It focuses on the National Labor Relations Board's (NLRB) analysis of employees' rights to communicate electronically, such as on social media, blogs, and email.

Employee Electronic Communications Under the National Labor Relations Act

Practical Law Practice Note w-004-8132 (Approx. 70 pages)

Employee Electronic Communications Under the National Labor Relations Act

by Practical Law Labor & Employment
Maintained • USA (National/Federal)
This Practice Note outlines unionized and nonunionized employees' rights under the National Labor Relations Act (NLRA) to communicate and how employees may forfeit those rights. It focuses on the National Labor Relations Board's (NLRB) analysis of employees' rights to communicate electronically, such as on social media, blogs, and email.
The National Labor Relations Board (NLRB), which enforces the National Labor Relations Act (NLRA), has long protected unionized and nonunionized employees' Section 7 rights to, among other things, discuss employment terms and conditions with co-workers as part of and to spur concerted activity. Moreover, the NLRB has protected employees' rights to discuss those terms and conditions and related labor disputes with third parties, such as unions and the media.
In recent years, as employees increasingly use their own and their employers' devices and systems to communicate electronically, the NLRB has continually developed precedent on:
  • Disciplining employees for their electronic communications, including on social media.
  • Employment policies that expressly or reasonably would be read to limit employees' means for communicating electronically.
This Note discusses how the NLRB has retrofit existing precedent and developed new precedent to address employees' electronic communications. Specifically, this Note discusses:
  • NLRB precedent on whether employee communications:
    • are concerted;
    • are protected; or
    • initially were concerted and protected but lost the NLRA's protection because of an employee's related actions or statements.
  • How the NLRB has adapted or created exceptions from tests about concertedness and NLRA protections for modern electronic communications.
  • Traditional precedent on whether employment policies run afoul of the NLRA because of their express or implied restraint on employees' Section 7 activities.
  • How the NLRB has adapted traditional employment policy analysis and developed new rights for employees to engage in Section 7 activities in electronic communications.

What Makes an Employee Communication Concerted

The NLRB's Traditional Concerted Activity Analysis

Section 7 of the NLRA can protect concerted activity for the purpose of collective bargaining or other mutual aid or protection (29 U.S.C. § 157). The NLRB and US Court of Appeals for the District of Columbia Circuit defined and refined what constitutes concerted activity under the NLRA in a series of cases involving Meyers Industries, Inc. (see Meyers Indus., Inc., 268 N.L.R.B. 493 (1984) (Meyers I), remanded sub. nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), reaffirmed on remand, 281 N.L.R.B. 882 (1986) (Meyers II), affirmed sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987); also see NLRB v. City Disposal Systems, 465 U.S. 822 (1984)).
In Meyers I, the NLRB concluded that concerted activity for mutual aid or protection:
  • Includes activity engaged in:
    • with other employees;
    • on the authority of other employees; or
    • to bring attention to concerns expressed by a group of employees collectively, often referred to as a "common cause."
  • Does not include individual action for personal gripes or complaints, even where other employees:
    • may benefit; or
    • have an interest in the subject of the employee's complaint.
(Meyers I, 268 N.L.R.B. 493 at 497-98.)
After the DC Circuit remanded the case to the NLRB to supply a reasoned explanation for changing its concerted activity analysis, the NLRB clarified its decision in Meyers II. There, the NLRB elaborated on its standard and affirmed its prior holdings in Meyers I. In Meyers II, the NLRB explained that concerted activity may include circumstances where individual employees either:
  • Seek to initiate, induce, or prepare for group action.
  • Bring truly group complaints to the attention of management.
The NLRB based its supplemental analysis on the Mushroom Transportation Co. v. NLRB standard, in which the US Court of Appeals for the Third Circuit held that:
  • "[A] conversation may constitute a concerted activity although it involves only a speaker and a listener, but to qualify as such, it must appear at the very least it was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of employees."
  • "Activity which consists of mere talk must, in order to be protected, be talk looking toward group action…. [I]f it looks forward to no action at all, it is more than likely to be mere 'griping.'"
(Meyers II, 281 N.L.R.B. at 887; see Mushroom Transp. Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964).)
The NLRB has also concluded, with appellate court support, that individual employees may engage in concerted activity by:
For several years, the NLRB applied a per se rule that an employee initiates group action, and therefore engages in concerted activity, by publicly protesting employment terms in a group setting. The NLRB later overruled the precedent setting that per se rule because it improperly conflated the concepts of group setting and group complaint, ignoring Meyers I's requirement that concerted activity be engaged in with or on the authority of other employees. (Alstate Maint., LLC, 367 N.L.R.B. No. 68, slip op. at 1, n.2 (Jan. 11, 2019) overruling Wyndham Resort Dev't Corp. (WorldMark by Wyndham), 356 N.L.R.B. 765 (2011)). However, the NLRB later overruled Alstate Maintenance, asserting that it limited analysis to a checklist of factors rather than the totality of record evidence, and that the NLRB there misconstrued Worldmark by Wyndham. In turn, the Alstate Maintenance guidance on analyzing the totality of circumstances under Meyers I and II to differentiate individual gripes from concerted activity is overruled. (Miller Plastic Prods., Inc., 372 N.L.R.B. No. 134, slip op. at 1, 3-7 (Aug. 25, 2023).)
The NLRB uses the burden-shifting Wright Line analysis to decide whether an employer disciplined an employee because of concerted activity in cases that turn on the employer's motive (251 N.L.R.B. 1083 (1980), enforced 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989, approved in NLRB v. Transp. Mgmt. Corp., 462 U.S. 393 (1983)). However, where the conduct for which the employee is disciplined is the purported concerted activity, the NLRB holds that Wright Line analysis is not appropriate and decides whether the discipline interfered with or constrained union or other concerted protected activity (Phoenix Transit Sys., 337 N.L.R.B. 510, 510 (2002), enforced 63 Fed. App'x 524 (D.C. Cir. 2003); see also St. Joseph's Hosp., 337 N.L.R.B. 94, 95 (2001)).
For more information on employee discipline under the NLRA, see Practice Note, Discipline and Discharge Under the National Labor Relations Act.

Inherently Concerted Communications

Between 2012 and 2017, the NLRB resuscitated the principle that when communications are about certain subjects, the communications are "inherently concerted." US Courts of Appeals uniformly rejected the concept of "inherently concerted activity" when the NLRB previously recognized that concept (see Trayco of So. Carolina, Inc. v. NLRB, 927 F.2d 597 (4th Cir. 1991); Aroostook Cty. Reg'l Ophthalmology Ctr. v. NLRB, 81 F.3d 209 (D.C. Cir. 1996) (criticizing the inherently concerted theory as "nonsensical," "limitless," and having "no good support in the law")).
Nevertheless, the NLRB recognized that conversations about the following topics are concerted irrespective of the factors ordinarily considered under Meyers I and II and Mushroom Transportation:
The NLRB noted its interest in reconsidering the "inherently concerted" line of precedent because it arguably conflicts with the concerted activity standard under Meyers I and Meyers II (Alstate Maint., LLC, 367 N.L.R.B. No. 68, slip op. at 1, n.2 (Jan. 11, 2019); see The NLRB's Traditional Concerted Activity Analysis). However, the NLRB subsequently overruled Alstate Maintenance (Miller Plastic Prods., 372 N.L.R.B. No. 134, slip op. at 1, 3-7).

The NLRB's Concerted Activity Analysis for Employee Electronic Communications

The NLRB applies Meyers I and II to determine whether employee electronic communications are concerted regardless of what type of device, platform, system, or format employees uses to disseminate the communication. For example, the NLRB has held communications may be concerted where employees shared work-related:
The NLRB typically reviews social media posts or other message types for substantial evidence that they:
  • Concerned employment terms and conditions.
  • Were intended for or in response to the posting or sending employee's co-workers.
(See, for example, North West Rural Elec. Coop., 366 N.L.R.B. No. 132, slip op. at 1, n.1 (power line worker engaged in concerted activity by reiterating previously workplace complaints about his employer’s safety policies on a Facebook page followed by fellow employees concerning that type of work).)
The NLRB does not hold that an employee engaged in concerted activity in electronic communications when that allegation is supported merely by the employee's testimony that the employee posted on social media any of the following:
  • Unspecified criticisms about the employee's employer.
  • Unspecified comments about a union.
  • Unspecified response to a work-related post of another unidentified person who cannot be confirmed to be a coworker.
(World Color (USA) Corp., 360 N.L.R.B. 227, 227-28 (2014).)
For example, in Dalton Schools, Inc., the NLRB held that an employee engaged in concerted activity when the employee sent an impassioned email to colleagues in the school's theater department commenting on demands the employees should make in a joint letter:
Protesting how the school administration's created additional, time-sensitive work by reshuffling a musical shortly before its scheduled performance.
Demanding an apology from management.
The NLRB noted that:
  • The recipient list included fellow department employees.
  • The email:
    • referred to communications from other employees about how to address an ongoing dispute the department staff had with school administration about last minute increases in workloads; and
    • included a call for a specific type of group action towards management.
  • A supervisor, manager, or other agent of the employer would reasonably understand the email as intended to be a communication to induce or further concerted activity.
(364 N.L.R.B. No. 18, slip op. at 1, 5-7.)
Similarly, in Pier Sixty, LLC, the NLRB held that a food service employee engaged in concerted activity when, during a work break, the employee used the employee's iPhone to vent on the employee's Facebook page about how a manager treated fellow employees and him at a catering event and to urge them to support a union in a pending election. Record evidence showed that the post was visible to the employee's Facebook friends, which included some coworkers and others who visited the employee's page. Witness testimony showed that the post was part of employees' ongoing protests regarding allegedly demeaning treatment by managers and a drive to obtain union representation to address those concerns. (362 N.L.R.B. 505, 505-06 (2015) (abrogated in part on other grounds, Gen. Motors, LLC, 369 N.L.R.B. No. 127 (July 21, 2020) and restored by Lion Elastomers LLC, 372 N.L.R.B. No. 83 (May 3, 2023); see Bettie Page Clothing, 359 N.L.R.B. 777, 777-78; also see Richmond Dist. N'hood Ctr., 361 N.L.R.B. 833, 834 and 837 (concerted but unprotected Facebook posts urging insubordination).)

Inherently Concerted Electronic Communications

The NLRB applied the inherently concerted principle to an employee's:

The NLRB Is Likely to Hold That "Liking" a Facebook Comment Is Concerted Activity

In Three D, LLC (Triple Play Sports Bar & Grille), the NLRB decided that employees engaging in Facebook discussions principally concerning complaints about owing state taxes because of purported employer errors in tax withholding did not lose the NLRA's protection even though their posts and the discussion thread was expletive-ridden and disparaged the employer within customers' view. For more on that analysis, see Triple Play: Forfeiture of NLRA Protections Analysis for Social Media Posts Starts Taking Shape.
Technically, the NLRB did not resolve whether an employee engages in concerted activity by clicking the Facebook "Like" button in response to an employment or labor dispute-related post of another employee because the employer did not file exceptions (an NLRB appeal) or otherwise challenge that conclusion by an NLRB administrative law judge (361 N.L.R.B. 308 (2014); enforced, 629 Fed. App'x 33 (Oct. 21, 2015)). However, the NLRB has since cited Triple Play as supporting conclusions that liking other employees' Facebook and email discussions constituted protected, concerted activity without parsing the non-precedential adoption of the ALJ's concerted activity analysis from the binding portions of that decision (for example, see Mexican Radio Corp., 366 N.L.R.B. No. 65 (Apr. 20, 2018) and Bettie Page Clothing, 361 N.L.R.B. 876, 876, n.1 (2014)).

Forfeiting the NLRA's Protections

The NLRA Analysis for Traditional Modes of Communication

When employees engage in concerted activity, they may forfeit the NLRA's protection if the activity, for example, is offensive or abusive, or grievously harms an employer.
When analyzing whether an employee's communications are too offensive or abusive to be protected by the NLRA, the NLRB tends to use the following setting-specific standards:
In the most common cases, those concerning employee discipline for confrontations with managers or supervisors, the NLRB applies the Atlantic Steel test to give employees leeway when engaging in heated discussions with their employers about employment terms and conditions. Often the NLRB held the altercations remained protected even when employees:
  • Screamed.
  • Cursed.
  • Engaged in other spirited acts.
(See, for example, Felix Indus., Inc., 339 N.L.R.B. 195 (2003).)
Likewise, the NLRB commonly holds that employees could direct racially or sexually offensive language at other employees in the course of union or other concerted activity without forfeiting NLRA protection, provided they do not engage in or threaten physical violence (see, for example, NC-DSH LLP (Desert Springs Hosp. Med. Ctr.), 363 N.L.R.B. at 1824, n.3; Cooper Tire & Rubber Co., 363 N.L.R.B. 1952, 1956-1961 (2016) (reinstating picketing employee terminated for shouting racial epithets at replacement workers).
Between 2020 and 2023, the NLRB replaced the setting specific standards with the burden-shifting Wright Line framework and overruled cases applying those standards. The NLRB uses Wright-Line to determine whether employee discipline is motivated unlawfully by Section 7 activity (Gen. Motors LLC, 369 N.L.R.B. No. 127, slip op. at 9, n.22 (July 21, 2020); see 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), approved in NLRB v. Transp. Mgmt. Corp., 462 U.S. 393 (1983); see Practice Note, Discipline and Discharge Under the National Labor Relations Act : Discipline Based on Union Activities.
However, the NLRB overruled General Motors and restored the precedent that case overruled (Lion Elastomers LLC, 372 N.L.R.B. No. 83 (May 1, 2023) (overruling General Motors)).
The NLRB has also at times also considered whether an employee's statement or conduct:
When analyzing employee communications to third parties harming the employer or its agents, including statements made to the media, the NLRB applies a disloyalty or heightened defamation analyses both crafted by the US Supreme Court (NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953)) see Jefferson Standard: Public Disloyalty or Product Disparagement; Linn v. Plant Guards Local 114, 383 U.S. 53 (1966); see Linn v. United Plant Guard Workers, Local 114: Employer Defamation).

Atlantic Steel: Undermining Supervisor or Management Authority

In Atlantic Steel Co., an employee concerned that the employer assigned overtime work to a probationary employee rather than based on seniority asked the employee's foreman about overtime assignments. The foreman provided an answer and, while walking away, overheard the employee telling a nearby co-worker that the foreman was either a "lying son of a bitch" or a "mother f-ing liar," or told a "mother f-ing lie." An arbitrator sustained the employee's discharge. The NLRB, recognizing that the employee engaged in concerted protected activity by inquiring about overtime assignments, balanced four factors to determine that the employee forfeited the NLRA's protections with the employee's later conduct:
  • The place of the discussion.
  • The subject matter of the discussion.
  • The nature of the employee's outburst.
  • Whether the outburst was provoked by an employer's unfair labor practice (ULP).
(Atlantic Steel Co., 245 N.L.R.B. 814 (1979).)
The NLRB applies the Atlantic Steel test when deciding whether an employee's vulgar, offensive, or disparaging communications, typically, but not necessarily involving a manager or supervisor, lose the NLRA's protections (see Overnite Transp. Co., 343 N.L.R.B. 1431, 1437 (2004)).
The nature of an outburst often carries more weight than the other factors in this balancing test, but it is not determinative (compare Indian Hills Care Ctr., 321 N.L.R.B. 144, 151 (1996) (vulgar, profane, and obscene language directed at a supervisor or employer exceeded NLRA's protections) with Plaza Auto Ctr., Inc., 360 N.L.R.B. 972 (2014) (first, second, and fourth Atlantic Steel factors outweighed third factor to protect obscene and denigrating, face-to-face, ad hominem attack against a senior manager and business owner in a workplace where that conduct had previously resulted in an employee's firing)).

Place of the Discussion

Public outbursts in the workplace weigh against protecting an employee's conduct more than outbursts in face-to-face meetings with management. The NLRB reasons that outbursts in places where they are likely to be overheard by other employees, such as common work areas or employee break rooms, more greatly affect management's ability to maintain production and discipline by undermining the authority of supervisors subject to the outbursts. Employees are more likely to forfeit NLRA protections if other employees hear the outburst, or worse, the outburst occurs during working time and interrupts their work. (Compare Aluminum Co. of Am., 338 N.L.R.B. 20, 22 (2002) with Overnite Transp. Co., 343 N.L.R.B. 1431, 1437 (2004); see Felix Indus., Inc. v. NLRB, 251 F.3d 1051, 1054 (D.C. Cir. 2001), denying enforcement and remanding, 331 N.L.R.B. 144, 145 (2000).)

Subject Matter of the Discussion or Outburst

The more an employee outburst concerns employment terms and conditions, the more the "subject matter" factor weighs in favor of protecting the employee's conduct. The NLRB tends to permit parties to use obscenities, rhetoric, and crass language during the heat of labor relations (Trailmobile Trailer, LLC, 343 N.L.R.B. 95 (2004)).
Conversely, when an outburst does not concern employment terms or conditions and is comprised mostly of personal attacks against a supervisor, this factor weighs against continued NLRA protections (see Overnite Transp. Co. & Teamsters Local 667, 343 N.L.R.B. at 1437).

Nature of the Employee's Outburst

The NLRB considers various sub-factors when evaluating whether the nature of an outburst weighs in favor or against protecting the employee's conduct. An outburst is less likely to be protected if:
  • It has a long duration.
  • It contains language that is:
    • belligerent;
    • denigrating;
    • profane; or
    • obscene.
  • It is accompanied by:
    • overt insubordination;
    • a threat;
    • a physical gesture; or
    • physical contact.
  • It appears to be premeditated rather than impulsive.
  • The language or conduct of the outburst exceeds what is ordinarily tolerated for employees and supervisors in the workplace.
(Trus Joist MacMillan, 341 N.L.R.B. 369 (2004) (the employee lost NLRA's protections where the employee used obscenities with the employee's supervisor and accused the supervisor of being a prostitute); Felix Indus., Inc., 339 N.L.R.B. 195, 196 (2003) (employee's use of obscenities on the telephone to supervisor weighs in favor of losing the NLRA's protections, although NLRB held conduct was protected based on other Atlantic Steel factors).)
The NLRB applies an objective standard when evaluating whether an outburst is belligerent, threatening, or intimidating. It considers the subjective impressions of witnesses but assesses whether:
  • Statements are unambiguous.
  • Physical gestures, contact, or actions reinforce that the outburst was threatening.
(Kiewit Power Constructors Co., 355 N.L.R.B. 708 (2010), enforced 652 F.3d 22, 29 fn. 2 (D.C. Cir. 2011).)
The NLRB assesses the employer's real view on the egregiousness of the language or outburst by considering an employer's subjective reactions when supervisors or other employees:
  • Engaged in a similar outburst.
  • Used similar language.
(Compare Corrections Corp. of Am., 347 N.L.R.B. 632, 636 (2006) (finding no loss of protection based on employee's profanity where similar language was common among employees and supervisors alike) with Aluminum Co. of Am., 338 N.L.R.B. at 22 (the discipline was warranted because profanity far exceeded that which was common and tolerated in the employee's workplace).)
Brief employee statements that objectively may be explained away as a joke or hyperbole that the employee would not act on do not lose the NLRA's protections. For example, an employee did not lose the NLRA's protection by telling a company official that "if you're taking my truck, I'm kicking your ass right now," because that statement was not a serious threat of physical harm in the context of the workplace's culture (see Leasco, Inc., 289 N.L.R.B. 549, 549 n. 1 (1988)). However, when an employee clearly endorses or threatens specific acts of insubordination, property destruction, or physical harm, those statements weigh against NLRA protections and an employer need not wait for the endorsed or threatened actions before discharging the employee (Broyhill & Assocs., Inc., 298 N.L.R.B. 707, 708-10 (1990) (an employee repeatedly refusing to work a night schedule and would sooner take time off or call in sick than work night assignments forfeited the NLRA's protections and was lawfully discharged)).
Blurring the lines between the subject matter and nature of outburst factors, the NLRB tends to tolerate bitter, abusive, or profane speech during the heat of union-management relations. The NLRB tends to hold that impulsive speech of those types is protected when part of the res gestae of any of the following:
(See Kiewit Power Constructors, 355 N.L.R.B. at 710; Beverly Health & Rehab. Servs., 346 N.L.R.B. 1319, 1322-1323 (2006); also see Letter Carriers v. Austin, 418 U.S. 264, 272 (1974) ("freewheeling use of the written and spoken word … has been expressly fostered by Congress and approved by the NLRB").)

Employer Provocation for the Employee's Outburst

The more that an employer or one of its agents provokes an employee's outburst, the more the provocation factor favors protecting the employee's conduct. The NLRB considers provocations of various forms, including:
  • Charged or found employer ULPs.
  • Unalleged conduct that may constitute a ULP.
  • Supervisor or manager argumentative statements.
  • Supervisors declining to talk about an issue an employee raises, especially if that issue concerns employment terms or conditions.
(See Plaza Auto Ctr., Inc., 360 N.L.R.B. 972 (2014); Overnite Transp. Co., 343 N.L.R.B. 1431, 1438 (2004).)
Unprovoked outbursts weigh against protecting the employee's conduct (Atl. Steel Co., 245 N.L.R.B. 814, 817 (1979)).
The NLRB generally does not apply Atlantic Steel when deciding whether an employee's communications with third parties or the general public forfeit the NLRA's protections. However, the NLRB has applied Atlantic Steel with appellate court rebuke to an employee's off-duty verbal attack on a supervisor near the workplace in the presence of other employees and customers (see Starbucks Coffee Co., 354 N.L.R.B. 876 (2009), adopted in 355 N.L.R.B. 636 (2010), enforcement denied, 679 F.3d 70, 79-80 (2d Cir. 2012) (denying enforcement and remanding where NLRB used Atlantic Steel factors to decide whether employee's outburst in the presence of customers lost NLRA's protections)).
When the NLRB reviews employee communications with third parties or the general public, it instead generally applies the Supreme Court's disloyalty and defamation analyses from NLRB v. Electrical Workers Local 1229 (Jefferson Standard) (346 U.S. 464 (1953)) and Linn v. Plant Guards Local 114 (383 U.S. 53 (1966)).

Jefferson Standard: Public Disloyalty or Product Disparagement

In Jefferson Standard, the Supreme Court upheld the NLRB's determination that product disparagement, which amounted to disloyalty, was good cause for discharge where the employees used the product disparagement as a tactic in an undisclosed labor dispute (346 U.S. 464 (1953)).
In Jefferson Standard, when negotiations for a new CBA reached an impasse, technicians represented by the International Brotherhood of Electrical Workers launched a handbill campaign attacking the quality of the employer's television broadcasts in Charlotte, North Carolina, and suggesting that the company must think of Charlotte as a "second-class" city based on its broadcasting equipment investments. The handbills did not reference the union or the ongoing collective bargaining labor controversy. The handbills simply noted that the technicians from the station authored the handbills.
The court reasoned that disseminating the handbill was not NLRA-protected activity because the technicians:
  • Did not inform the audience, the general public in Charlotte, that the communication was related to an ongoing labor dispute.
  • Disparaged the quality of the company's programming at a critical time in initiating its television service.
  • Did not reference the company's labor practices or their working conditions when lodging their attack of the company.
(346 U.S. at 476-78.)
When analyzing whether employee communications to third parties exceed the protections of the NLRA under Jefferson Standard, the NLRB considers whether:
  • The communications indicate that they are related to an ongoing labor dispute.
  • The communications must lose the NLRA's protections because they are too:
    • disloyal;
    • reckless; or
    • maliciously untrue.
  • Purportedly disloyal communications were:
    • made at a "critical time in the initiation of the company's business;" and
    • so disparaging that they could be seen as "reasonably calculated to harm the company's reputation and reduce its income."
(Valley Hosp. Med. Ctr., 351 N.L.R.B. 1250, 1252 (2007) (quoting Jefferson Standard), enforced sub. Nom. Service Employee Local 1107, 358 Fed. App'x 783 (9th Cir. 2009).)
Applying Jefferson Standard, the NLRB and federal courts have:
The NLRB has also analyzed whether anyone receiving the communication would reasonably infer that the communicating employee's motive was to garner support in the labor dispute rather than to disparage the company's product and held that an employee's communication that expressly references an ongoing labor dispute remain protected (for example, see MikLin Enters., Inc., 361 N.L.R.B. 283 (2014)). A panel of the DC Circuit enforced an NLRB order deferring to the NLRB's analysis and conclusions concerning allegedly disloyal communications with customers; however, the US Court of Appeals for the Eighth Circuit holds that express references to a labor dispute do not automatically immunize related disparaging communications about the employer's product. (Compare DirecTV, Inc. v. NLRB, 837 F.3d 25, 35-36 (D.C. Cir. 2016) with MikLin Enters., Inc., 861 F.3d 812 (8th Cir. 2017) (denying enforcement in relevant part)).

Linn v. United Plant Guard Workers, Local 114: Employer Defamation

In Linn v. United Plant Guard Workers, Local 114, a manager alleged that a union defamed the manager during an organizing campaign. The US Supreme Court affirmed the dismissal of the manager's claims and held that the NLRB has exclusive jurisdiction over this type of defamation claim unless the plaintiff satisfied a heightened malice standard for defamation claims concerning employee or union statements made during labor disputes. The standard requires a plaintiff-employer to show that a defendant-employee's or union's statements:
  • Were a deliberate or reckless untruth.
  • Caused actual harm.
Due to the Supremacy Clause, the federal NLRA-related defamation standard preempts state defamation laws. The Supreme Court endorsed requiring employers to meet the heightened defamation standard, reasoning that if states were permitted to regulate allegedly defamatory statements during labor disputes, that would "dampen the ardor of labor debate and truncate the free discussion envisioned by the [NLRA]." The court recognized that "Both labor and management often speak bluntly and recklessly, embellishing their respective positions with imprecatory language." (Linn v. Plant Guards Local 114, 383 U.S. 53, 58, 63-65 (1966).)

Opprobrious, Profane, Defamatory, or Malicious Language with Co-Workers

Totality of Circumstances

When determining whether employees forfeit the NLRA's protections in their communications with co-workers, the NLRB considers all circumstances surrounding challenged speech or conduct rather than particular factors in isolation. For example, in Desert Springs Hospital, the NLRB held that a pro-union certified nursing assistant (CNA) engaged in protected union activity when calling the cellphone of a co-worker currently at work in a section of the hospital rumored to be voting against union representation in a pending union election (NC-DSH, LLP (Desert Springs Hosp. Med. Ctr.), 363 N.L.R.B. 1824, 1824, n.3 (2016)). The CNA did not forfeit the NLRA's protections even though the Tower 5 employee complained to the employer that she felt threatened, after the CNA admittedly expressed anger and frustration using the following profane language:
"[W]hat the fuck is this I'm hearing that everybody is saying—
I got a call that … everyone on Tower 5 wants to everyone to
get together and wait a year to see what the hospital do [sic],
and then unionize again. … I'm so sick of hearing this mother
fucking shit. I just want it all to be over."
The NLRB relied on the following circumstances to conclude the conversation remained protected:
  • The CNA was off duty when calling the co-worker.
  • The CNA did not know that the co-worker was on duty until the end of their conversation.
  • Only the co-worker heard the CNA's profane statements, which were unaccompanied by a threat of harm.
  • There was no evidence that the co-worker was in a patient care area when answering the call.
  • The CNA's unrebutted testimony showed that it was common for the CNA to use profane language during the CNA's conversations with that co-worker.
    (363 N.L.R.B. No. 185, slip op. at 1, n.3.)
However, the NLRB held that an employee distributing newsletters debating about employment terms with a co-worker and criticizing the employer's bonus program lost the NLRA's protection by stating in the newsletter that the other employee should "come out of the closet," and derisively calling the bonus the "bone us" plan. The NLRB held that the following circumstances compelled its decision:
  • The employer maintained a well-publicized philosophy and strictly enforced a rule against abusive or threatening language, creating an intimidating, hostile, or offensive working environment.
  • The employer received complaints from employees and managers about the comments in the newsletter, which never previously contained vulgar, offensive, or profane language.
  • The employer reasonably believed that legal obligations and its operating philosophy compelled it to discipline the employee, especially considering the common vulgar meanings the parties stipulated could be attributed to the words.
  • Despite the employer's history of disciplining employees for vulgar or offensive language, the employee placed the offensive language in newsletters that would be available to all employees and management throughout the plant. The employee's actions could not be dismissed as impulsive.
  • The employer imposed discipline (a suspension) that was consistent with past disciplinary measures for similar employee actions and suited the particular offense.
  • The employer evidenced no anti-union animus. It never disciplined the employee for the employee's past newsletter employer criticisms and support for union organizing.
(Honda of Am. Mfg., 334 N.L.R.B. 746, 747-748 (2001).)

Coercive and Intimidating Speech

The NLRB and federal courts generally hold union-related communications to be protected. However, a pro-union communication is unprotected where:
The speaker is in a position to actually enforce the threats (Liberty Nursing Homes, 245 N.L.R.B. 1194 (1979)).

Other Misconduct Standards

Coercive and Intimidating Speech

The NLRB and federal courts generally hold union-related communications to be protected. However, a pro-union communication is unprotected where:

Egregious Insubordinate Conduct

In Neff-Perkins Co., employees used the terms "shitty" and "sucks" to describe training and equipment maintenance in front of a customer present at a workplace meeting. The NLRB found that the employees' insubordinate conduct was part of the res gestae of a protected activity, sharing group concerns about working conditions. The employees did not lose the NLRA's protections because their conduct was not so egregious as to either:
  • Take it outside the protection of the NLRA.
  • Render the employees unfit to work.
(315 N.L.R.B. 1229, 1233-34 (1994).)

Off-Duty Misconduct at a Retail Establishment

Employee conduct which occurs in selling areas of a retail operation or which disrupts customers or service to customers is unprotected even though it may be protected if it occurred in other areas. Conduct is less likely to be protected if:
  • Customers were exposed to the sights and sounds of the demonstrations.
  • The employees' conduct:
    • interfered with the employer's ability to serve its patrons in an atmosphere free of interruption and unwanted intrusion, or
    • infringed on the customers' shopping or dining enjoyment.
(Restaurant Horikawa, 260 N.L.R.B. at 198-99.)
In Restaurant Horikawa, a labor demonstration that began outside of a restaurant lost the NLRA's protection when thirty demonstrators, including one off-duty employee, entered the restaurant for 10 to 15 minutes and seriously disrupted the business by parading boisterously about during the dinner hour when patronage was at or near its peak before confronting the restaurant manager in the restaurant's administrative offices (260 N.L.R.B. at 197-198).

Union Discipline of Members for Disparaging Communications

Although not the focus of this Note, employees also have Section 7 rights to communicate about their unions, including criticizing union leadership and the unions' operations and procedures (Steelworkers Local 1397 (U.S. Steel Corp.), 240 N.L.R.B. 848, 849 (1979)). The NLRB balances a union member's Section 7 rights against the union's legitimate interests in disciplining the member. However, the NLRB does not balance the respective rights unless the member first shows that the internal discipline does one of the following:

The NLRB's Developing Analysis for Employee Electronic Communications

The NLRB has not endorsed a single standard for determining whether an employee has forfeited the NLRA's protections in an employee's electronic communications. The NLRB's analysis is instead currently a patchwork of partially adopted ALJ conclusions and responses to various arguments parties have made when excepting to ALJs' factual and legal analyses. In short, the legal standard in each case varies based on:
  • The traditional forfeiture of NLRA rights analysis:
    • asserted by the employer in defending its discipline of an employee; and
    • on which the ALJ relied.
  • The part of the ALJ's recommended decision and order the parties appealed in exceptions to the NLRB.
Even though the NLRB's analysis of employees forfeiting NLRA rights in electronic communications may be at a formative stage, the following precedent add the highlighted principles and show how the NLRB has adapted traditional forfeiture of NLRA rights precedent to electronic communications.

Valley Hospital: Employee Statements on the Internet Can Be Protected

In 2007, the NLRB first decided that arguably protected employee pro-union communications may remain protected even though the employee transmitted them over the internet rather than using the conventional means the employee previously used for related messages (a speech at union press conference and quotes in a union flyer). In Valley Hospital Medical Center, Inc., the employee, a nurse, published a blog on the union's publicly accessible website in which the nurse:
  • Criticized the employer-hospital's policies.
  • Discussed staffing level problems that negatively impacted the nurses' ability to perform their jobs that, in the nurse's opinion, could compromise patients' health.
The NLRB held that the hospital unlawfully suspended the employee after the blog was published online. Specifically, the NLRB held that:
  • Employees have a Section 7 right to communicate online with each other and the public to improve employment terms and conditions or otherwise improve their lot as employees. Neither an employee's right to communicate online nor the employer's right to discipline can be exercised without regard to the other party's rights.
  • The online communication in this case was concerted and protected union activity. The employee's online statements were both:
    • the continuation of concerted activity supporting the union during negotiations with the hospital; and
    • related to the ongoing labor dispute about staffing because the nurse made them on the union's website the day after a union rally addressing staffing levels.
  • It was appropriate to apply Jefferson Standard when evaluating whether this employee's communications lost the NLRA's protections. Under Jefferson Standard, the nurse's comments criticizing the hospital's labor practices in the context of publicized negotiations about staffing levels were not maliciously false or sufficiently disloyal to lose the NLRA's protections (citing 346 U.S. at 477-78); also see Desert Cab, Inc. (ODS Chauffeured Transp.), 367 N.L.R.B. No. 87 (Feb. 8, 2019) (NLRA protections not forfeited by sarcastic Facebook posts that were not maliciously untrue and were a continuation of an ongoing labor dispute, whether or not the posts were public)).
  • If protected concerted activity is not unlawful, violent, in breach of contract, or disloyal, employees engaged in that activity generally do not lose the NLRA's protections simply because their activity contravenes an employer's rule or policy. Under Communication Workers Local 9509, the nurse could not be disciplined for violating a policy requiring complaints about the employer to be raised internally (303 N.L.R.B. 264, 272 (1991)).
(Valley Hosp. Med. Ctr., 351 N.L.R.B. 1250, 1252 (2007).)

Triple Play: Forfeiture of NLRA Protections Analysis for Social Media Posts Starts Taking Shape

After several NLRB decisions concerning employees' use of social media were invalidated under Noel Canning v. NLRB, the NLRB started building its precedent on the topic from scratch (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).
In Three D, LLC (Triple Play Sports Bar and Grille), the NLRB held that the employer unlawfully discharged two nonunion employees participating in an expletive-ridden Facebook discussion disparaging the employer and one of its principals. The Facebook discussion, in which other employees and customers participated, began when a former employee posted a "status update" complaining about owing state taxes because of purported employer errors in tax withholding. Starting with the unchallenged (and therefore non-precedential) ALJ conclusion that employees can engage in concerted activity by pressing the Facebook "Like" button in response to a posted comment about employment terms and conditions, the NLRB began developing a framework for evaluating under what circumstances employees lose the NLRA's protections for concerted activity on social media. The NLRB set the following parameters for evaluating whether employees forfeited the NLRA's protections by their off duty, offsite use of social media to communicate with other employees or third parties:
  • The Jefferson Standard disloyalty and Linn defamation analyses are generally apposite. Employers may defend the lawfulness of disciplining employees for concerted communications on social media by showing the communications are sufficiently disloyal, reckless, or maliciously untrue to lose the NLRA's protections (MasTec Advanced Techs., 357 N.L.R.B. 103, 107 (2011); see Jefferson Standard: Public Disloyalty or Product Disparagement and Linn v. United Plant Guard Workers, Local 114: Employer Defamation).
  • The since-overruled and restored Atlantic Steel test generally is inapposite and does not apply. The NLRB concluded that the since-overruled and restored Atlantic Steel test might apply if an employee-manager confrontation occurs on social media, but would not here and in other cases where there is no observable employee-manager confrontation on social media.
  • The Restaurant Horikawa standard is inapposite. That case did not set a standard for evaluating all types of employee off-duty misconduct in the presence of a retail employer's customers (See 260 N.L.R.B. 197 (1982); see Off-Duty Misconduct at a Retail Establishment). The NLRB later explained that Restaurant Horikawa was inapposite to circumstances where an off-duty employee started concerted protests outside of the retail employer's premises and never disrupted customers' enjoyment of the employer's services by taking the protest inside the employer's premises (see Pier Sixty, LLC, 362 N.L.R.B. 505, 507, n.6 (2015)).
  • When reviewing whether an employee's comment in concerted communications remains protected, the comment is read as a response to or endorsement only of the specific post to which the employee posted it.
  • An employee's commentless Facebook "like" expresses approval only of the specific post for which the employee pressed the "Like" button. A commentless "like" does not express approval of earlier responses by others to the same post, because an employee wishing to express approval of any additional comments emanating from the initial post would "like" them individually.
  • An employee does not forfeit the NLRA's protections by participating in an otherwise protected social media discussion because other persons post unprotected statements in the discussion thread. An employee cannot be held responsible for any comments posted in an exchange other than the employee's.
  • The entire Facebook discussion may be considered for factors showing communications within it are concerted and protected. Employees may not be held accountable for other's unprotected comments within a discussion, but those comments may be used to show the individuals were engaged in concerted discussions about employment terms and conditions and remained protected because they were clearly part of a labor dispute.
    (361 N.L.R.B. 308, 308-13 (2014).)
The NLRB quoted the Facebook discussion thread, which included a status update, sixteen comments from former employees, customers, and current employees of the employer, and a "like." The NLRB referenced portions of the thread when explaining the ALJ's undisputed determination that the discharged employees engaged in concerted activity and provide context for the communications that prompted the two challenged discharges. However, based on the parameters the NLRB selected and narrow issues before it, it focused only on:
  • The former employee's Facebook "status update" to the employee's Facebook page:
    "Maybe someone should do the owners of Triple Play a favor and buy it from them. They can't even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!"
  • The comment the first discharged employee posted to the discussion thread (the eleventh comment in the status update discussion): "I owe too. Such an asshole."
  • The second discharged employee's "like" of the status update (entered after five comments to the status update).
Applying Jefferson Standard, the NLRB held that the employees' communications were not akin to the unprotected communications in Jefferson Standard or otherwise sufficiently disloyal to lose the NLRA's protections because:
  • The Facebook discussion clearly disclosed an ongoing labor dispute existed about tax withholding practices.
  • The comment and "like" by the discharged employees (and the Facebook discussion generally) were not directed to the public because:
    • the discussion was posted to an individual's Facebook page. It was not, for example, on a company website providing information to the public about its products;
    • the Facebook privacy settings of the participants permitted only Facebook "friends" to see the employee's posts;
    • the customers observing the criticism of the employer's tax withholding practices and the disparaging comments about one of its principals were Facebook friends with the former employee initiating the discussion. The customers voluntarily pivoted to discussing that they no longer frequent the employer's establishment because it is expensive; and
    • the discharged employees and the discussion generally, do not disparage or, much less, mention the employer's products and services.
    (361 N.L.R.B. at 313-14.)
The NLRB also held that the employees' posted comment and "like" were not defamatory under Linn, because:
  • The employer offered no evidence showing the employee claims that the employee's withholding was insufficient to cover the employee's tax liability or that the employer caused the shortfall, were maliciously untrue, even though the discharged employee who claimed, "I owe too":
    • admitted that she had no reason to believe her withholding had been improperly calculated; and
    • may have tacitly endorsed the former employee's claim in her status update that the employer erred in its tax withholding. The employees did not repeat that statement.
  • Although the employee profanely characterized one of the employer's principals as an "asshole" regarding purported tax withholding errors, that is an opinion rather than a statement of fact that may be tested for its falsity.
    (361 N.L.R.B. at 313-14.)
In light of the NLRB determination that the employee's Facebook comment and "Like" did not lose the NLRA's protections, the NLRB held that the employer unlawfully discharged the employees for participating in disparaging but not sufficiently disloyal or defamatory Facebook discussion (361 N.L.R.B. at 314-16).

Other Standards for Forfeiting the NLRA's Protections May Apply

Triple Play is the NLRB's lead social media-related case, but it does not provide a comprehensive analysis for the NLRB to apply to all social media cases. Parties have argued for and ALJs have applied different analyses about employees forfeiting NLRA protections in electronic communications. The NLRB has deferred to the ALJs' analyses where there were no exceptions to the legal standard the ALJs applied (see Pier Sixty, LLC, 362 N.L.R.B. at 506, 510 (affirming ALJ's conclusions from the totality of the circumstances test that the vulgarity of employee's Facebook post was diluted by the totality of circumstances), overruled by Gen. Motors, 369 N.L.R.B. No. 127, slip op. at 1-2, 6-7, 9, n.22 and restored by Lion Elastomers, 372 N.L.R.B. No. 83; Richmond Dist. N'hood Ctr., 361 N.L.R.B. 833, 834, n.6 (2014) (affirming ALJ's examining the egregiousness of insubordination in Facebook posts)). For analysis of each of these cases, see Pier Sixty: Vulgarity of Employee's Facebook Post Diluted by Totality of Circumstances and Richmond District Neighborhood Center: Calls on Social Media for Insubordinate Conduct Forfeit NLRA's Protections, respectively.
The NLRB has also held that the Jefferson Standard and Linn analyses endorsed in Triple Play are inapposite when an employer claims an employee's communications are unprotected for reasons other than because they are disloyal, disparage the employer's products or services, or are defamatory (see Novelis Corp., at 1453-54, n.12, enforcement denied in part on other grounds 885 F.3d 100 (2d. Cir. 2018)). For analysis of Novelis, see Novelis Corp.: Employees Have Wide Latitude to Engage in Pro-Union Rants About Union Elections.

Pier Sixty: Vulgarity of Employee's Facebook Post Diluted by Totality of Circumstances

In Pier Sixty, LLC, the NLRB affirmed an ALJ's conclusions that a catering company unlawfully discharged an employee for venting the employee's frustrations by posting the following about the employee's supervisor on the employee's personal Facebook page for the employee's "friends," including some co-workers and anyone accessing the employee's page:
"Bob is such a NASTY MOTHER FUCKER don't know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!!
What a LOSER!!!! Vote YES for the UNION!!!!!!!"
The NLRB held that this Facebook post:
  • Called attention to a supervisor's mistreatment of employees.
  • Invoked the upcoming election as a way to address the employer's actions.
  • Was part of a continuing protest against the employer and a call to other employees to support the union.
  • Was not so egregious that it loses the NLRA's protections.
The NLRB rejected the ALJ's use of the Atlantic Steel framework. However, the NLRB affirmed the ALJ's alternative totality of circumstances rationale and how the ALJ analyzed those factors in nearly all respects. The NLRB refrained from deciding whether a totality of circumstances analysis was the appropriate test for deciding whether the employee forfeited the NLRA's protections in the employee Facebook communication, in the absence of exceptions challenging the ALJ's analytical framework. The NLRB held that all the following circumstances supported the employee not forfeiting the NLRA's protections:
  • Evidence of the employer's anti-union hostility. The NLRB affirmed that there was evidence of Pier Sixty's anti-union hostility, including:
    • multiple instances of ULPs by Pier Sixty leading up to the union election; and
    • the employer's disparate enforcement of its "no talk" rule preventing employees from discussing the union.
  • The employer provoking the employee's conduct. The NLRB affirmed that the employee was offended by the "no talking" commands the manager, the subject of the post, gave the employee and other table servers immediately before the employee took a break to post the employee's comment. That constituted provocation.
  • The employee's conduct was impulsive. The NLRB affirmed that the post was an impulsive reaction to perceived mistreatment by the manager minutes earlier and a culmination of months of frustration. The NLRB found that the post was not deliberate despite separately finding that the employee requested permission to take a break, left the employer's premises, made the employee's Facebook comments during the employee's break and returned to the employee's station after the break.
  • The location of the employee's Facebook post. The NLRB highlighted the following facts when affirming the factor weighed in favor of continued NLRA protections:
  • The subject matter of the post. The NLRB found the post:
    • echoed other employees' sentiments regarding the employer's mistreatment of employees; and
    • encouraged employees to vote for the union.
  • The nature of the post. The NLRB acknowledged that the message was distasteful, but found the references to the manager's family were to intensify the criticism of the manager and not to slur the manager's family.
  • The employer did not consider language similar to that used by the employee to be offensive. The NLRB noted that the work environment was rife with obscenities and the language in the posts was not qualitatively different from the profanity regularly tolerated.
  • The employer did not maintain a specific rule prohibiting the language at issue. The NLRB found that Pier Sixty's "Other Forms of Harassment" policy (cited by Pier Sixty as the basis for discharging the employee) did not prohibit generally vulgar or offensive language.
  • The discipline imposed on the employee was not typical of that imposed for similar violations and was disproportionate to the employee's offense. The NLRB found that Pier Sixty had never fired an employee overusing obscene language.
(362 N.L.R.B. 505 (2015).)
The US Court of Appeals for the Second Circuit enforced the NLRB's decision, holding that Pier Sixty's discharge of the employee was unlawful because the employee's comments were concerted and not so "opprobrious" as to lose the NLRA's protections. The Second Circuit noted that:
  • Its conclusion relied heavily on deference to the NLRB's:
    • factual findings on the social and cultural context in which the language was used; and
    • interpretation of what constitutes concerted activity under the NLRA.
  • It was not validating the totality of circumstances test. Pier Sixty did not except to the ALJ using the test to evaluate the employee's posted comments or petition the court to review that standard.
  • The case was distinguishable from cases of opprobrious conduct involving a public outburst in the presence of customers considering:
    • the subject matter of the comments (workplace concerns, including management's allegedly disrespectful treatment and the pending union election);
    • the employer's tolerance for profanity; and
    • the "location" of the vulgar comments. Facebook is a tool for union organizing in the modern era and the particular Facebook wall was not visible to actual or potential customers, notwithstanding the three days it was publicly available.
However, the court noted that:
  • The employee's conduct was at the "outer-bounds" of vulgar union-related comments that the NLRA could protect.
  • Whatever test the NLRB ultimately applies when evaluating whether an employee's electronic communications are sufficiently vulgar to forfeit the NLRA's protections must be sensitive to employers' legitimate disciplinary interests (see Starbucks, 679 F.3d at 79).
(NLRB v. Pier Sixty, LLC, 855 F.3d 115 (2d Cir. 2017).)

Richmond District Neighborhood Center: Calls on Social Media for Insubordinate Conduct Forfeit NLRA's Protections

In Richmond District Neighborhood Center, the NLRB affirmed an ALJ's conclusions that an after-school teen center lawfully rescinded offers to rehire two nonunion employees for the new school year after learning the employees discussed extensively on Facebook their frustrations with management and their jobs and their plans to break rules, disobey orders, and refuse to work in the coming year. The NLRB affirmed that the employees' obscenity-laced comments were so egregious and insubordinate that they forfeited the NLRA's protections and rendered themselves unfit for further service (361 N.L.R.B. 833, 834 (citing Neff-Perkins Co., 315 N.L.R.B. 1229, 1229 n. 2, 1233-1234 (1994)); see Egregious Insubordinate Conduct).
The NLRB parsed the Facebook discussion and cited examples of how the employees threatened to:
  • Refuse to get required permission to organize youth activities.
  • Disregard specific school district rules (applicable because the employer shared facilities with a high school).
  • Undermine leadership.
  • Neglect job duties.
  • Jeopardize the employer's future and the safety of its youth participants.
The NLRB did not judge whether the egregious insubordinate conduct standard applied by the ALJ was appropriate for reviewing private Facebook discussions because there were no exceptions concerning the ALJ's analytical framework. However, the NLRB held that:
  • An objective standard rather than a subjective standard must be used when evaluating whether employees are unfit for further service based on discussions about insubordinate or threatened conduct. The ALJ erroneously relied on the employer's subjective belief that the discussion rendered the employees unfit, but the error was harmless because the employees' conduct was objectively too egregious.
  • An employer may discipline or discharge an employee before the employee takes planned or threatened insubordinate actions discussed on social media. The employer was especially justified in discharging these employees, who set out the proposed actions:
  • It is appropriate to rely on advocacy of insubordination rather than employees' profanity or disparagement of managers when concluding that the employees forfeited the NLRA's protections in their Facebook posts. The ALJ noted the employees' use of obscenities but appropriately relied on the employees' calls for insubordinate conduct when concluding the employees' communications were sufficiently egregious to lose the NLRA's protections.
(361 N.L.R.B. 833 (2014).)

Novelis Corp.: Employees Have Wide Latitude to Engage in Pro-Union Rants About Union Elections

In Novelis Corp., a pro-union employee upset that the union lost a recent election accessed the employee's Facebook account and posted the following critique of the employee's wages and co-workers voting against the union:
"As I look at my pay stub for the 36 hour check we get twice a month, One worse than the other. I would just like to thank all the F*#KTARDS out there that voted "NO" and that they wanted to give them another chance...! The chance they gave them was to screw us more and not get back the things we lost...! Eat $hit "NO" Voters...."
The NLRB affirmed an ALJ's conclusion that this post was concerted. The ALJ held it was concerted because the post:
The NLRB held that:
  • The Jefferson Standard and Linn frameworks are inapposite where the employer:
    • does not claim that the employee lost the NLRA's protections based on disloyal or defamatory communications; and
    • asserted the post lost the NLRA's protections for other reasons.
  • The employer did not show the post lost the NLRA's protections as "discriminatory" or "threatening to other employees." The NLRB noted that it disagreed with the employer's characterization of the post as threatening and discriminatory without analysis. The ALJ noted that the employer permitted profane language in its workplace.
(364 N.L.R.B. at 1453-54, ns.12, 41-42, enforced in relevant part, (2d Cir. Mar. 15, 2018.)
The NLRB's analysis in Novelis and Pier Sixty suggest that employees are to be given greater latitude to use profane and arguably threatening language in social media posts that past NLRB precedent considered to be non-concerted, unprotected rants if:
  • Other employees observed the posts.
  • The posts mention union elections or wages.
  • The General Counsel can show that the employer did not maintain or strictly enforce a rule against profanity.

AdvancePierre Foods: Traditional Unlawful Surveillance Elements Apply to Union Activity Surveilled on the Internet and Social Media

In AdvancePierre Foods, Inc., the NLRB determined how it would analyze employer efforts to learn about union activity through internet searches and review of internet and social media-based union activity. The NLRB affirmed that an employer's internet searches for employees' union activity and on linked suspected union sympathizers' Facebook pages are to be:
  • Analyzed as would traditionally prohibited employer surveillance of traditional union activity. Unlawful surveillance occurs when an employer’s agent intentionally tries to observe or learn of employee union activity (see, for example, Astro Shapes, Inc., 317 N.L.R.B. 1132, 1133 (1995)(unlawful surveillance for supervisor to park in tavern parking lot where union meeting was scheduled because he was curious how many employees would show up) and Dadco Fashions, Inc., 243 N.L.R.B. 1193, 1198-1199 (1979) (unlawful surveillance for supervisor purposely to drive by union's roadside park highway meeting "because she was curious")).
  • Not dismissed merely as supervisor curiosity or lawful consumption of publicly available information just because the employer's agent attempted to gather information about employees' suspected participation in a union organizing drive without breaking through password protections to view the website and Facebook pages.
(366 N.L.R.B. No. 133 (July 19, 2018).)

Amalgamated Transit Union Local 1433: Unions Need Not Disavow Offensive Communications on Their Websites or Social Media Pages by Non-Agent Union Members

In Amalgamated Transit Union Local 1433 (Veolia Transp. Servs.), the NLRB analyzed whether a union is accountable for offensive and threatening posts to its Facebook page for union members. The NLRB held that a union had no obligation to disavow or remove comments posted on the private Facebook page by union members who were not agents of the union. The comments derided and threatened employees not participating in the union's strike and threatened violence and other actions against strike replacement workers, the latter of which were not union members and would not have had access to the Facebook page. The NLRB adopted an ALJ's opinion, finding the union had no duty to disavow the statements because:
  • The union Facebook page was not "an electronic extension of the union's picket line." Unlike a union picket line, a union Facebook page is private and does not seek to communicate with the public.
  • Imposing a duty on the union to disavow other persons' statements would be compelled speech and may infringe on the union's First Amendment rights.
(360 N.L.R.B. 261, 255-260 (2014).)
The DC Circuit enforced the NLRB's decision, holding that:
  • The NLRB's decision that the union was not liable for the Facebook posts was a product of "reasoned decisionmaking." The NLRB could reasonably:
    • find that the union's Facebook page was not an "electronic extension" of the union's picket line because it was private and did not confront employees in an immediate, coercive fashion; and
    • conclude that although the Facebook page was run by the union, the union members posting the Facebook comments were not agents of the union and the comments were not authorized by the union.
  • The NLRB and the Supreme Court have held that in strike situations, misconduct or violence by union members may only be imputed to a union if the union:
  • Section 8(b)(1)(A) of the NLRA only applies to conduct by a labor organization and its agents (29 U.S.C. § 158(b)(1)(A)).
The DC Circuit noted that it may have decided the case differently if actual threats were posted on a public internet site. (Weigand v. NLRB, 783 F.3d 889, 895-97 (D.C. Cir. 2015).)

MikLin Enterprises: Employer Accountable for Manager's Facebook Harassment of Union-Supporting Employee

In MikLin Enterprises, Inc. (Jimmy John's), the NLRB decided to what extent an employer-franchisee was liable for harassment of a union-supporting employee occurring on a Facebook page started by other employees. During an organizing campaign by the International Workers of the World (the Wobblies), employees opposing the union started an anti-union Facebook page. Those employees invited employees, some store managers and assistant managers, and a franchise co-owner to become members. The Facebook page was open so that anyone with a Facebook account, including non-group members, could view it.
One of the union-supporting employees (unlawfully discharged for the employee's Wobblies activity), was periodically the subject of posts on the anti-union Facebook page. Around the time of the employee's Wobblies activities and the employee's discharge, the assistant manager of the store in which the employee worked posted:
  • The employee's phone number and suggested that group members "let him know how you feel."
  • The message: "Fuck you David Forever."
Separately, a former MikLin employee, who several months earlier had been discharged for putting excrement in the Wobblies-supporter's coat pocket, posted to the anti-union Facebook group page a photo of that employee altered to include excrement on the bill of the employee's cap. A MikLin store manager and assistant store manager posted their approval of the posted image and encouraged that the image be put up everywhere.
The NLRB held that:
  • MikLin violated Section 8(a)(1) when an assistant manager encouraged employees, supervisors, and managers to harass the Wobblies-supporting employee. The following acts would reasonably intimidate both the employee and other employees by dissuading them from supporting the union for fear they would be subject to similar humiliation and ridicule:
  • MikLin did not commit a ULP when the franchises' co-owner responded to the posted altered photo by calling the employee "unibrowner." That remark amounted to name-calling that contained no threats, suggestions of union futility, or calls for harassment. The distasteful name-calling constituted "vituperative speech" that the NLRA tolerates in the heat of labor relations (Trailmobile Trailer, LLC, 343 N.L.R.B. 95 (2004)).
(361 N.L.R.B. 283, 290 (2014); enforced in relevant part, 861 F.3d 812 (8th Cir. 2017).)

FDRLST Media, LLC: Employer Liable for Posted Threat of Unspecified Reprisals for Union Activity on Executive Officer's Private Twitter Account

In FDRLST Media, LLC, the NLRB decided:
  • Whether an employer would be liable for threatening unspecified reprisals for unionizing expressed by an executive officer posted on his personal twitter account.
  • How to remedy the violation in light of the threats being posted on a private Twitter account.
In that case, on the day union employees at Vox Media, an online digital media network that carries the news and commentary content of the employer among other publishers, the employer's executive officer posted on his private Twitter account, "FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine."
The NLRB:
  • Concluded that the executive was a supervisor and agent for the employer.
  • Found that:
    • employees would reasonably view the message as expressing an intent to take swift action against any employee who tried to unionize; and
    • the reference to sending that employee “back to the salt mine” reasonably implied that the employer's response to union activity would be adverse.
  • Rejected a contention that the threatening statement was not intended as a communication to employees because it was posted on Twitter, because:
    • the words of the statement itself leave no doubt that it was directed at the employees; and
    • at least one employee viewed the tweet (Crown Stationers, 272 N.L.R.B. 164, 164 (1984) (a threat not intended for the eyes of employees but nonetheless seen by them violates Sec. 8(a)(1)).
  • Rejected a contention that the tweet was a personal statement protected by Section 8(c) of the NLRA, because Section 8(c) expressly excludes threats of reprisals from its protections (29 U.S.C. § 158(c); also see Webco Indus., 327 N.L.R.B. 172, 173 (1998) (Section 8(c) does not protect implicit threats of discipline for engaging in union activities)).
  • Adopted an ALJ's conclusion that the employer was liable for its agent's Twitter post, which violated Section 8(a)(1) by threatening employees with unspecified reprisals in a statement its agent posted to his private Twitter account. The NLRB noted that it did not rely on evidence that the employer's website hosts editorials about unionization or that Vox Media employees engaged in a walkout on June 6, 2019, because there was no evidence that employees who viewed the tweet were aware of either the editorials or the walkout.
  • Ordered the employer to direct the executive to delete the coercive statement from his private Twitter account and take unspecified "appropriate steps" to ensure the executive complied with its directive.
(370 N.L.R.B. No. 49, slip op. at 1 (Nov. 20, 2020).)
However, the Third Circuit denied enforcement and granted review of the NLRB's order, concluding that the NLRB misconstrued a facetious remark as a true threat (FDRLST Media, LLC v. NLRB, (May 20, 2022)).
In Tesla, Inc., the NLRB held the employer committed a ULP when CEO Elon Musk posted a tweet on Twitter stating that employees at a Fremont, California facility would lose their stock options if they chose union representation and ordered that the employer direct Mr. Musk to delete the unlawful tweet from his personal @elonmusk Twitter account. However, the NLRB also included in its remedy an order requiring the employer to conduct a nationwide notice posting concerning this ULP but not the host of other ULPs sustained in the case. The NLRB held that the prospective impact of the tweet on all US-based employees necessitated a notice posting as to this ULP reaching all US-based employees rather than just the Fremont, California facility employees the tweet discussed. The NLRB noted that the tweet:
  • Was visible to 22,700,000 Twitter followers.
  • Was republished and disseminated "via Twitter, Facebook, radio, television, newspapers, news media, and various other print and social media platforms."
(370 N.L.R.B. No. 101, slip op. at 9 (Mar. 25, 2021), enforced, 63 F.4th 981 (5th Cir. Mar. 31, 2023), vacating enforcement and granting rehearing en banc, 73 F.4th 960 (5th Cir. July 21, 2023).)

Mexican Radio: The Triple Play of Group Email Replies to All Recipients

In Mexican Radio Corp., the NLRB held that the employer unlawfully discharged four nonunion employees for replying-all to agree with a scathing nonpublic email from a recently resigning former employee to managers, owners, and the staff of a Mexican restaurant. The group email:
  • Complained and continued previous group complaints about wages, work schedules, the employer's tip policy, working conditions, and the general manager's treatment of employees.
  • Contained several expletives.
  • Surmised that the manager and owners were engaging in unlawful employment and business practices.
The NLRB affirmed the ALJ's conclusions that:
  • The employees engaged in concerted activity by replying in agreement to the group email which was:
    • part of an ongoing employer-employee dialogue about employment terms and conditions. Just as in Triple Play, the NLRB looked at the surrounding circumstances, including whether the group email raised group employment concerns or continued an ongoing labor dispute; and
    • a reaction to the employer’s failure to correct the problems.
  • Applying Wright Line, the evidence showed that the employer terminated the employees because of email replies that constituted concerted activity. The ALJ credited evidence that the employer discharged the employees because they agreed with the email, which the employer deemed insubordination.
  • The employer failed to show that it would have taken the same action absent the protected activity. The employer's submissions to the EEOC and unemployment insurance board, the employer's voicemail messages left for some of the employees, and testimony about the employees' terminations showed that the employer's other purported reasons for discharging the employees (job abandonment or refusing to be interviewed) were pretextual.
  • The employees' respective replies were not insubordinate or so egregious that they forfeited the NLRA's protections. The NLRB focused on the following circumstances for this conclusion:
    • the email was a reaction to the employer's not correcting problems previously raised by the employees;
    • the email contained little profanity and was merely a critique of the employer's management style rather than insubordination. Just as in Triple Play and Pier Sixty, the NLRB considered the nature and degree of the expletive usage and the context and nature of the group email and responses;
    • the employees did not add negative comments of their own to the email. An employee cannot be held responsible for any unprotected comments posted in an email exchange other than the employee's. Just as the NLRB does not hold that an employee's "Like" attaches to both the protected and potentially unprotected comments in a social media discussion, the NLRB focuses on an employee's own statements in a group email; and
    • the email caused no loss of reputation or disruption to business because it was nonpublic. The NLRB considered the limited list of recipients and the lack of evidence of impacts on customers or business operations circumstances favoring continued protection of the group email participants, despite the email's obscenities and sharp commentary just as it found concerning the lone, off-duty, largely private Facebook post in Pier Sixty.
(Mexican Radio Corp., 366 N.L.R.B. No. 65, slip op. at 1-2 (Apr. 20, 2018); for more information on Triple Play and Pier Sixty, see Triple Play: Forfeiture of NLRA Protections Analysis for Social Media Posts Starts Taking Shape and Pier Sixty: Vulgarity of Employee's Facebook Post Diluted by Totality of Circumstances, respectively.)

Union Discipline of Members for Disparaging Electronic Communications

When reviewing whether a union's discipline of an employee for the employee's electronic communications violate Section 8(b)(1)(A) of the NLRA, the NLRB considers electronic communications as it would non-electronic communications. For example, in Laborers Local 91 (Council of Utility Contractors, Inc.), the NLRB held that the union unlawfully removed a member from its nonexclusive hiring hall's out-of-work list for Facebook criticism of a union business manager conveying a journeyman book to a city councilman because:
  • Removing the member from the out-of-work list deprived him of employment opportunities out of the hiring hall.
  • The member's right to criticize the union's action especially as it might affect employment opportunities for journeyman by increasing the number of journeymen in the local area outweighed the union and its business manager's generalized right to protect its reputation from critical public statements.
(365 N.L.R.B. No. 28 (Feb. 7, 2017).)

Regulating Employee Communication in Employment Policies

The Static Portions of the Employment Policy Analysis

The NLRB consistently holds that an employer interferes with Section 7 rights and therefore violates Section 8(a)(1) of the NLRA by:
  • Promulgating a work rule, employee handbook provision, or employment policy (collectively, employment policy):
    • that explicitly restricts Section 7 activity; or
    • in response to union activity.
  • Applying an employment policy to restrict the exercise of Section 7 rights.
(Martin Luther Mem'l Home, Inc. (d/b/a Lutheran Heritage Village-Livonia), 343 N.L.R.B. 646 (2004) (Lutheran Heritage), overruled in part by Boeing Co., 365 N.L.R.B. No. 154, slip op. at 1, 3, 7-14 (Dec. 14, 2017) (setting new analysis for evaluating employment rules that are facially neutral regarding Section 7 activity but potentially may impact Section 7 activity), and overruled in part by AT&T Mobility, LLC, 370 N.L.R.B. No. 121, slip op. at 4-8 (May 3, 2021) (an unlawful application of an otherwise lawful employment policy does not automatically warrant a finding that the policy can no longer be lawfully maintained); see also Communication Workers v. NLRB, 6 F.4th 15, 23-28 (D.C. Cir. 2021).)
An employer can also violate the NLRA by simply maintaining a policy that would "reasonably tend to chill" employees from exercising their rights under the NLRA, including communicating about employment terms and conditions. This is true even where:
  • No employees engage in concerted activity covered by the policy.
  • The employer does not enforce the policy.
(Lafayette Park Hotel, 326 N.L.R.B. 824 (1998), enforced, 203 F.3d 52 (D.C. Cir. 1999).)
The NLRB's analysis of employment policies that are facially neutral as to Section 7 activity but potentially could impact Section 7 activity is more in flux.

The NLRB's In-Flux Analysis of Employment Policies Not Expressly Restricting Employees’ Section 7 Activities

The Lutheran Heritage Standard

Between 2004 and 2017, the NLRB analyzed employment policies that were facially neutral regarding Section 7 activity but potentially could impact Section 7 activity under the Lutheran Heritage standard. Under that standard, the NLRB held that maintaining an employment policy violated Section 8(a)(1) of the NLRA if "employees would reasonably construe an employment policy's language to prohibit Section 7 activity."
Relying on Lafayette Park Hotel, the NLRB in Lutheran Heritage directed that when determining whether an employment policy is unlawful, it must:
  • Give the policy a reasonable reading.
  • Refrain from reading particular phrases in isolation.
  • Not presume improper interference with employee rights.
(343 N.L.R.B. at 646-47.)

The Boeing Standard

In Boeing Co., the NLRB overruled the Lutheran Heritage "reasonably construe" standard because it:
  • Led to inconsistent and unpredictable results.
  • Was applied without faithful observance of the Lafayette Park Hotel's directives that the NLRB avoid:
    • reading particular phrases in isolation and instead consider phrases and the rule as a whole, in context;
    • finding a violation simply because a policy could be understood to restrict protected activity; and
    • requiring employers to anticipate and catalogue in employment policies every instance in which prohibited types of speech might be protected or exempted from Section 7's protections.
  • Failed to consider employer's legitimate interests for maintaining an employment policy.
  • Tended to invalidate policies:
    • containing any general or ambiguous terms; and
    • because of the policies' potential impact on Section 7 activity under hypothetical scenarios.
Between December 14, 2017 and August 1, 2023, when analyzing employment rules that were facially neutral regarding Section 7 activity but potentially could impact Section 7 activity, the NLRB considered and balanced:
  • The nature and extent of a rule's potential impact on Section 7 activity from a reasonable employee's perspective.
  • The employer's legitimate justifications for maintaining the rule.
Under that analysis, an employer could violate Section 8(a)(1) of the NLRA by maintaining an employment rule that, when reasonably construed from an employee's perspective, would both:
  • Prohibit or interfere with the exercise of Section 7 rights.
  • Have an adverse impact on Section 7 rights that the employer's legitimate justifications for maintaining the rule did not outweigh.
(365 N.L.R.B. No. 154, slip op. at 3-4, 7-16 (Dec. 14, 2017).)
Under the Boeing analysis, the NLRB identified types of employment policies as generally lawful, generally unlawful, or warranting further individual scrutiny (Boeing, 365 N.L.R.B. No. 154, slip op. at 15 (identifying three categories for classifying policies; LA Specialty Produce Co., 368 N.L.R.B. No. 93, slip op. at 2 (Oct. 10, 2019) (creating subcategories (a) and (b) within Boeing Category 1 to parse employment policies that were generally lawful because they did not prohibit or interfere with employees' exercising Section 7 rights from policies that were generally lawful because their justifications outweighed their potential adverse impact on Section 7 rights).
The Boeing categories were intended to illustrate generally the results of the Boeing analysis and not as per se rules (Lowes Home Ctrs., LLC., 368 N.L.R.B. No. 133, slip op. at 1, n.1 (Dec. 12, 2019))
For analysis of how the NLRB applied Boeing to evaluate various types of employment policies see The NLRB's Boeing Categories for Employment Rules Chart.
In Boeing, the NLRB also:
In Boeing, the NLRB did not expressly:
  • Overrule precedent holding that the NLRB may construe an ambiguity in an employment policy against the drafting employer and hold that a policy's lack of clarity reasonably tends to chill Section 7 activity (Lafayette Park Hotel, 326 N.L.R.B. at 825; enforced. mem., 203 F.3d 52 (D.C. Cir. 1999)).
  • Address how its analysis comported with federal circuit court precedent requiring an employer to show:
    • that a challenged employment policy is narrowly tailored to serve its legitimate interests without unnecessarily interfering with Section 7 activity; or
    • an inability to achieve its legitimate goal with a more narrowly tailored rule that would not interfere with Section 7 activity.
(See, for example, Guardsmark, LLC v. NLRB, 475 F.3d 369, 374–380 (D.C. Cir. 2007); also see Hyundai Am. Shipping Agency, 357 N.L.R.B. 860 (2011), enforced in relevant part, 805 F.3d 309, 314-16 (D.C. Cir. 2015).)

The Current Standard Under Stericycle, Inc.

On August 2, 2023, in Stericycle, Inc., the NLRB adopted a new legal standard for evaluating facial challenges to employer work rules not expressly restricting employees' protected concerted activity under Section 7 of the NLRA. The NLRB overruled Boeing, LA Specialty Produce, and all employment policy decisions applying the categorical classification system those decisions articulated (see The NLRB's Boeing Categories for Employment Rules Chart).
Under the Stericycle burden-shifting analysis, a challenged employment policy is presumptively unlawful under Section 8(a)(1) of the NLRA if the NLRB's General Counsel proves that the rule "has a reasonable tendency to chill employees from exercising of their Section 7 rights." The NLRB assesses that tendency:
  • Based on the perspective of an economically dependent, layperson employee, who contemplates engaging in protected concerted activity.
  • Regardless of:
    • the employer's intent; or
    • whether an alternative, noncoercive interpretation of the rule also is reasonable.
However, the employer may rebut this presumption, and the NLRB might find an employment policy lawful, if the employer shows both that:
  • The rule advances a legitimate and substantial business interest.
  • The employer's legitimate and substantial business interest could not be achieved by a more narrowly tailored rule.
Stericycle does not apply the standard it sets. Instead, the NLRB remanded to the administrative law judge (ALJ) allegations that the employer violated Section 8(a)(1) by maintaining rules governing personal conduct, conflicts of interest, and confidentiality of harassment complaints. The NLRB instructed the ALJ to issue a supplemental decision after permitting the parties to present evidence on those remanded issues in light of the new standard it announced in the case.
The NLRB also held that the new standard would apply retroactively, including to all pending cases. Consequently, the Board may ultimately apply the new standard for the first time in another case.
Currently, there is no NLRB precedent applying the Stericycle analysis, and consequently no decisions illustrating:
  • The types and amounts of evidence necessary for:
    • the NLRB General Counsel to prove an employment policy is presumptively unlawful under Section 8(a)(1) of the NLRA; or
    • an employer to rebut that presumption.
  • How the NLRB might construe employment policy language using the perspective of a an economically dependent, layperson employee, who contemplates engaging in protected concerted activity.
(372 N.L.R.B. No. 113 (Aug. 2, 2023).)
For more information on Stericycle and questions that decision leaves open, see Article, The NLRB's New, Developing Standard for Assessing Lawfulness of Work Rules.

Discipline Tied to Unlawful Policies

If the NLRB determines that an employment policy's terms violate Section 8(a)(1) of the NLRA, such as if it is overbroad and prohibits NLRA-protected conduct along with unprotected conduct, the NLRB may find the employer committed a ULP by imposing discipline under an overbroad rule (Double Eagle Hotel & Casino, 341 N.L.R.B. 112, 112 n. 3 (2004), enforced, 414 F.3d 1249 (10th Cir. 2005)).
However, an employer does not automatically commit a ULP when it disciplines an employee under an overbroad policy. Double Eagle instead applies only where an employee is disciplined under an overbroad policy for conduct that is one of the following:
  • Clearly protected by the NLRA, such as concerted:
    • solicitation;
    • distribution; or
    • discussions of employment terms and conditions.
  • Not concerted, but touches on the principles underlying the NLRA, including employee conduct made in pursuit of higher wages.
    (Cont'l Grp., Inc., 357 N.L.R.B. 409 (2011).)
An employer can avoid liability under Double Eagle for disciplining an employee under an unlawfully overbroad policy, even in these circumstances, if it shows that it imposed the discipline because the employee's conduct actually interfered with any of the following:
  • The employee's work.
  • The work of other employees.
  • The employer's operations.
To defend itself effectively, the employer must both:
  • Raise the employee's interference as an affirmative defense in NLRB ULP proceedings about the disciplinary action.
  • Show that the employee's interference was the actual reason for the disciplinary action.
(Cont'l Grp., Inc., 357 N.L.R.B. at 412-13.)
For more information on how the NLRA regulations employee discipline, see Practice Note, Discipline and Discharge Under the National Labor Relations Act.

Common Employment Policy Pitfalls

Solicitation and Distribution Rules

Under the NLRA, employees have the right to communicate in the workplace for the purposes of forming or joining a union or to engage in other protected concerted activities. However, employers have the right to restrict employee solicitation and distribution. Specifically, employers may prohibit employee:
Employers cannot prohibit distribution in a mixed-use area where, for example, some employees work but other employees engage in non-work activities, including personal reading, lounging, or engaging in social conversation (United Parcel Serv., 327 N.L.R.B. 317 (1998), enforced, 228 F.3d 772, 776 (6th Cir. 2000)).
An employer may commit a ULP if it maintains policies that could be interpreted to preclude employee solicitations or distributions beyond the permissible limitations. As a result, employers cannot prohibit solicitation or distribution in non-work areas during "company time," "business hours," the "workday," or "working hours" (for example, see Lucky Stores, Inc., 271 N.L.R.B. 1190 (1984)).
However, under Republic Aviation, employers may prove there are special circumstances to justify more restrictive limitations. For example:
  • Retail department stores may prohibit employee solicitation on the selling floor during non-working time because of potential interference with sales to customers (Goldblatt Bros., Inc., 77 N.L.R.B. 1262 (1948)).
  • Health care employers generally may prohibit solicitation and distribution in immediate patient care areas at all times and may impose broader limitations if they can show that solicitation and distribution would disrupt patient care (Beth Israel Hosp. v. NLRB, 437 U.S. 483 (1978)).
Boeing did not alter precedent balancing employee rights and employer interests including property interests, such as precedent concerning rules restricting employee association, solicitation, or distribution (UPMC, UPMC Presbyterian Shadyside, 366 N.L.R.B. No. 142, slip op. at 1 n.5 (Aug. 6, 2018); Motor City Pawn Brokers Inc., 369 N.L.R.B. No. 132, slip op. at 1 n.4 (July 24, 2020), overruled on other grounds by Stericycle, 373 N.L.R.B. No. 113, slip op. at 1-2, 7 (Aug. 2, 2023)).

Confidentiality Rules

Employees have a right under Section 7 of the NLRA to discuss their wages and other employment terms and conditions with each other and with third parties. Employers therefore must narrowly tailor confidentiality policies to avoid interfering with these rights (see Cintas Corp. v. NLRB, 482 F.3d 463 (D.C. Cir. 2007)).
Confidentiality policies are unlawful if any of the following is true:
  • They specifically prohibit employees from discussing employment terms and conditions, including wages, hours, or workplace complaints.
  • Employees would reasonably understand them as prohibiting employees from discussing employment terms and conditions, including wages, hours, or workplace complaints.
  • They broadly encompass "employee" or "personnel" information, without clarification or limitation.
(Flamingo-Hilton Laughlin, 330 N.L.R.B. 287, 288 n.3, 291-92 (1999).)
In Boeing, the NLRB identified a confidentiality policy that prohibits employees from discussing their wages or benefits with one another as a Category 3 (unlawful) rule under its standard for evaluating facially-neutral employment policies (365 N.L.R.B. No. 154, slip op. at 15) Boeing progeny analyzed an array of confidentiality rules, including rules concerning confidentiality in employment investigations (see The NLRB's Boeing Categories for Employment Rules Chart: Confidentiality Rules).
Stericycle overruled Boeing and its progeny and set a new standard for evaluating the lawfulness of employment policies, including confidentiality rules. The NLRB has not applied the Stericycle analysis to any employment policies. It is likely that confidential policies that would have been unlawful under Boeing and its progeny also would be unlawful under Stericycle. It is not yet clear whether or in what circumstances the NLRB might deem confidentiality rules lawful under Stericycle (see The NLRB's In-Flux Analysis of Employment Policies Not Expressly Restricting Employees’ Section 7 Activities and The Current Standard Under Stericycle, Inc.)

Positivity, Cooperation, and Professionalism Rules

The NLRB scrutinizes rules that require employees to be positive, cooperative, or professional. The NLRB historically has held that some of these rules are unlawfully vague or overbroad because employees would reasonably read them as precluding concerted labor protests, which often are:
  • Critical of an employer's employment terms and conditions.
  • Uncooperative, such as in employees' refusals to work as part of a strike.
  • Unprofessional in the sense that the language and messaging used in labor disputes often are rife with colorful rhetoric rather than polished prose.
(For example, see T-Mobile USA, Inc., 363 N.L.R.B. 1638 (2016) (policy requiring cooperation among employees was overbroad), enforcement denied in relevant part, 865 F.3d 265 (5th Cir. 2017); Hills & Dales Gen. Hosp., 360 N.L.R.B. 611, 612 (2014), overruled by Boeing, 365 N.L.R.B. No. 154, slip op. at 3 ns.9-11, 4 n.15, 15 n.76) (language forbidding negative comments about fellow team members and requiring employees to represent the employer in the community in a positive and professional manner were vague and overbroad).)
Rules that preclude negativity towards employers or their agents, such as managers or supervisors, also often were held to be unlawful as precluding NLRA-protected criticism of the employer (Lytton Rancheria of Cal., 361 N.L.R.B. 1350, 1352 (2014); Quicken Loans, Inc., 361 N.L.R.B. 904 (2014)).
The NLRB also historically has permitted employers to prohibit insubordination if they do not preclude dissenting opinions about the employer short of insubordination (Copper River of Boiling Springs, LLC, 360 N.L.R.B. 459 (2014)).
In Stericycle, the NLRB overruled Boeing, including its deeming employment policies requiring harmonious interactions and relationships in the workplace as categorically lawful (see The NLRB's Boeing Categories for Employment Rules Chart: Harmonious Interactions and Relationships, Standards of Conduct, and Basic Civility Standards Rules, The NLRB's In-Flux Analysis of Employment Policies Not Expressly Restricting Employees’ Section 7 Activities, and The Current Standard Under Stericycle, Inc.). The NLRB has not applied the Stericycle analysis to any employment policies. It is not yet clear whether or in what circumstances the NLRB might deem harmonious workplace policies lawful under Stericycle.

Rules Against Defamatory or Disparaging Statements

Employers must exercise caution in preparing anti-defamation or non-disparagement policies and including anti-defamation or non-disparagement provisions in other types of policies. In traditional media, defamatory statements about a company's products or services are generally not protected under the NLRA (Jefferson Standard, 346 U.S. 464 (1953)). However, defamatory statements about a company or its officers can be protected by the NLRA if the statements are not maliciously false (Alaska Pulp Corp., 296 N.L.R.B. 1260 (1989)).
Consequently, the NLRB has historically held that precluding employees' "false statements" is an unlawfully overbroad restriction under the NLRA. For example, in T-Mobile USA, Inc., the company's code of business conduct prohibited employees from making "slanderous or detrimental comments about the Company, its customers, the Company's products or services, or Company employees."
The NLRB held that the policy was unlawful because the "detrimental comments" language:
  • Was ambiguous and overbroad.
  • Would reasonably be construed by employees as prohibiting controversial or contentious discussions, including those protected by Section 7 of the NLRA.
(363 N.L.R.B. 1638 (2016), enforcement denied in relevant part, 865 F.3d 265 (5th Cir. 2017); see Hills & Dales Gen. Hosp., 360 N.L.R.B. 611 (2014) and 2 Sisters Food Group, 357 N.L.R.B. 1816, 1817 (2011), each overruled by Boeing, 365 N.L.R.B. No. 154, slip op. at 3 ns.9-11, 4 n.15, 15 n.76); Roomstores of Phx., LLC, 357 N.L.R.B. 1690, 1690 (2011).)
Similarly, concerted employee protests about supervisory activity or selection of a supervisor if it affects working conditions can be protected activity under the NLRA (Atl.-Pac. Constr. Co., 312 N.L.R.B. 242 (1993)).
Boeing progeny analyzed an array of non-disparagement rules (see The NLRB's Boeing Categories for Employment Rules Chart: Non-Disparagement Rules). Stericycle overruled Boeing and its progeny and set a new standard for evaluating the lawfulness of employment policies, including non-disparagement rules. The NLRB has not applied the Stericycle analysis to any employment policies. It is likely that anti-defamation and non-disparagement rules that would have been unlawful under Boeing progeny, for example, rules prohibiting communications between or among employees that are intended to harm the reputation of the employer or its management personnel, would remain unlawful (see Union Tank Car Co., 369 N.L.R.B. No. 120, slip op. at 2-3 (July 17, 2020), overruled by Stericycle, 373 N.L.R.B. No. 113, slip op. at 1-2, 7 (rule deemed an unlawful Boeing Category 3 rule). It is likely that Stericycle progeny will align with pre-Boeing precedents more than Boeing progeny that deemed some non-disparagement rules lawful (see The NLRB's Boeing Categories for Employment Rules Chart: Non-Disparagement Rules and The NLRB's In-Flux Analysis of Employment Policies Not Expressly Restricting Employees’ Section 7 Activities and The Current Standard Under Stericycle, Inc.)

Rules Against Communicating with Third Parties

The NLRB acknowledges that employers may select their own spokespeople to present the employer's message or information to the media. However, an employer must phrase any rule it has about employees speaking with the media so that it does not expressly or would not be reasonably understood to prohibit employees from discussing employment terms and conditions with:
  • News media.
  • Government agencies.
  • Other third parties, such as unions.
(Trump Marina Assocs., 354 N.L.R.B. 1027, 1027 n.2 (2009), incorporated by reference, 355 N.L.R.B. 585 (2010), enforced mem., 435 F. App'x 1 (D.C. Cir. 2011).)
Boeing progeny analyzed an array of media contact rules. Stericycle overruled Boeing and its progeny and set a new standard for evaluating the lawfulness of employment policies, including media contact rules. The NLRB has not applied the Stericycle analysis to any employment policies. It is likely that media contact rules that would have been unlawful under Boeing progeny, for example, rules prohibiting employees from communicating with the media regardless of whether the communications concern confidential information or the employees purport to speak on the employer's behalf communications (see Tesla, Inc., 370 N.L.R.B. No. 101, slip op. at 2-5 (Mar. 25, 2021) (rule deemed an unlawful Boeing Category 3 rule). It is likely that Stericycle progeny will align with pre-Boeing precedents more than any Boeing progeny that deemed some media contact rules lawful (see The NLRB's Boeing Categories for Employment Rules Chart: Media Contact Rules; The NLRB's In-Flux Analysis of Employment Policies Not Expressly Restricting Employees’ Section 7 Activities and The Current Standard Under Stericycle, Inc.)

Rules on Use of Logos, Copyrights, and Trademarks

The NLRB acknowledges that employers may ordinarily prevent others from using their intellectual property including trademarks for commercial use.
However, the NLRB traditionally holds that rules prohibiting employees' fair protected use of that intellectual property, including, for example, barring employees from using company names, logos, or other marks because that would identify an employer in Section 7-related protests, are unlawful (Pepsi-Cola Bottling Co., 301 N.L.R.B. 1008, 1019-20 (1991), enforced mem., 953 F.2d 638 (4th Cir. 1992)).

Permission

The NLRB has held that any employment rule or policy that requires employees to obtain an employer's permission before engaging in protected concerted activity on an employee's free time and in non-work areas is unlawful. Consequently, the NLRB often deems unlawfully overbroad or vague rules that either:
  • Preclude speech or conduct generally unless employer permission is obtained.
  • Permit certain speech or conduct with the employer's permission.
(See, for example, Brunswick Corp., 282 N.L.R.B. 794, 795 (1987).)

The Electronic Communications Analysis

Relying on its precedent striking a balance between employee rights and employer interests and permitting employers in most instances to restrict non-business use of their tangible property and equipment, including communication equipment, the NLRB generally permits employers to implement facially neutral rules restricting non-business use of information technology (IT) resources such as employer computers or email systems (Caesars Entertainment (d/b/a Rio All-Suites Hotel & Casino), 368 N.L.R.B. No. 143, slip op. at 5, 7-8, n.56 (Dec. 16, 2019); see Caesars Entertainment: Employees Have No Right Under the NLRA to Use Company Email for Section 7 Activity).
Otherwise, Boeing progeny analyzed various employment policies concerning electronic communications and assigned the policies and their components to Boeing categories. Stericycle overruled Boeing and its progeny and set a new standard for evaluating the lawfulness of employment policies, including electronic communications policies besides those concerning email systems. The NLRB has not yet applied the Stericycle analysis to any policies.

Caesars Entertainment: Employees Have No Right Under the NLRA to Use Company Email for Section 7 Activity

In Guard Publishing Co. (Register Guard), the NLRB held, among other things, that employees have no right under the NLRA to engage in Section 7 activity on company-owned email systems and an employer may impose nondiscriminatory restrictions on the use of its email systems as it may with other equipment (351 N.L.R.B. 1110, 1115-16 (2007), enforced in relevant part 571 F.3d 53 (D.C. Cir. 2009)).
In Purple Communications, Inc., the NLRB overruled those core Register Guard holdings and held that employees already given access to employers' email systems in the course of their work have a presumptive right to use the email system to engage in Section 7-protected communications on nonworking time (361 N.L.R.B. 1050 (2014)). In Caesars Entertainment (d/b/a Rio All-Suites Hotel & Casino), the NLRB overruled Purple Communications, affirmed Register Guard's core holdings, and recognized an exception to those holdings. In particular, the NLRB held that:
  • An employer's communications systems, including its email system, are its property.
  • Employees do not have a statutory right to use their employer's email system and other IT resources for non-work-related communications.
  • An employer does not violate the NLRA by exercising its property right to control use of its communications systems, such as by restricting the nonbusiness use of its IT resources, unless the NLRB General Counsel proves that:
    • the employer implemented the rule in response to union or other protected concerted activity; or
    • the employer enforced the rule in a discriminatory way against union or other protected concerted activity.
  • The nature of the need for on-premises employee Section 7 activity, such as solicitation and literature distribution, determines whether and to what extent the NLRA may limit an employer's exercise of normal and legitimate property rights in email systems and other systems. The scope of any limitation on employer property rights in equipment such as email systems must be kept to a minimum where necessary to accommodate Section 7 rights (see Stoddard-Quirk, 138 N.L.R.B. at 617, 620).
  • An employer may also violate the NLRA by restricting the nonbusiness use of its email system if the General Counsel proves that the employer's email system is the only reasonable way for employees to communicate with each other during nonworking time in the workday to engage in protected Section 7 communications.
  • The NLRA does not require employers to permit the most convenient or most effective means of conducting Section 7 communication.
  • It is appropriate to consider employees' alternative means of communication when striking a balance between employers' property rights and employees' Section 7 rights.
  • The principles of Republic Aviation concerning employee solicitation:
    • are generally inapposite to analysis of rules about use of employers' email systems. Republic Aviation addresses face-to-face Section 7 activity within a physical workplace, where working time can clearly be distinguished from nonworking time and the two parties to the solicitation activity engage in it simultaneously. Email communications occur in a virtual space where working and nonworking time are indistinguishable, and the involved employees often compose and read the communications at different times;
    • would require employers to permit access to their email and other IT systems for Section 7 purposes only in the rare situations where employees can prove they otherwise would be deprived of adequate avenues for communication necessary for exercising Section 7 rights; and
    • do not support the proposition, embraced by the NLRB majority in Purple Communications, that if an employer grants employees access to its email system, it must allow them to use it for Section 7 activity absent special circumstances (see Republic Aviation, 324 U.S. at 802, n.8).
The NLRB also noted that:
  • Statistics from recent surveys on telecommuting suggest that:
    • almost all employees continue to report to workplaces on a regular basis; and
    • traditional face-to-face oral solicitation during nonworking time and distribution of literature in nonworking areas during nonworking time remain available in the typical workplace.
  • Statistics from recent surveys on internet, email, and social media use suggest that employees in modern workplaces employees have additional communications avenues including for Section 7-related communications because of their access to:
    • smartphones
    • personal email accounts; and
    • social media.
  • There is no basis for concluding that prohibiting use of an employer's email system for nonwork purposes in the typical workplace creates an "unreasonable impediment to the exercise of the right to self-organization" (see Republic Aviation, 324 U.S. at 802 n.8).
  • The NLRA:
(368 N.L.R.B. No. 143, slip op. at 5, 7-8, n.56 (Dec. 16, 2019).)
The NLRB did not define the scope of the no other reasonable means exception and instead stated that the exception's definition and scope, such as determining whether the exception applies to IT resources besides email, will be fleshed-out on a case-by-case basis (368 N.L.R.B. No. 143, slip op. at 8, n.67).
As a corollary to Caesars Entertainment, the NLRB also has held that an employer lawfully may maintain a facially neutral email policy prohibiting employees from using customized signature blocks in company emails. An employer is not required to permit employees to use customized signature blocks for Section 7 purposes just as it is not required to permit employees to use its email system for Section 7 purposes, absent special circumstances. (David Saxe Prods., 370 N.L.R.B. No. 103, slip op. at 4 ((holding there was no evidence of discriminatory treatment for Section 7-related signature blocks or special circumstances requiring employer to permit employees to use signature blocks in company emails for Section 7 purposes).)

Use of Other Employer-Owned Equipment and Systems for Section 7 Communications

In Caesars Entertainment, the NLRB also reaffirmed precedent holding that employers have a property right to control and employees have no Section 7 right to use for communications employer-owned:
(368 N.L.R.B. No. 143, slip op. at 6.)
However, it remains unlawful for employers to:
  • Promulgating a facially neutral electronic communications systems policy in response to union activity.
  • Apply a facially neutral employment policy to restrict the exercise of Section 7 rights.
(Lutheran Heritage, 343 N.L.R.B. 646, overruled in part by Boeing Co., 365 N.L.R.B. No. 154, slip op. at 1, 3, 7-14.)
For example, an employer may not ordinarily implement or enforce a rule restricting employees' non-business use of an HR software program in response to employees using it for union activity and communications (see Tesla, Inc., 370 N.L.R.B. No. 101, slip op. at 1, n. 5-6, overruled in part on other grounds by Stericycle, 373 N.L.R.B. No. 113, slip op. at 1-2, 7 (employer unlawfully imposed restrictions on employees' non-business use of a third-party HR software program, Workday, and disciplined employees under those restrictions directly in response to employees using it to engage in protected communications without showing that the rule was adopted to maintain production or discipline)).

Stericycle Topples Burgeoning Social Media and Other Electronic Communications Policy Precedents Under Boeing

Boeing progeny analyzed many policies concerning electronic communications and assigned policies and their components to Boeing categories. For discussions of these policies and the NLRB's analysis of them under Boeing, see The NLRB's Boeing Categories for Employment Rules Chart: Technology Rules, Audio and Video Recording Rules, Cellular Phone Usage Rules, Social Media Image- and Video-Posting Rules, Personal Use of Company Time and Property Rules, Social Media Rules, and Use of Employer's Name, Marks or Logos in Blogs or Social Media Posts Rules.
When Stericycle overruled Boeing and its progeny, it unsettled nearly all of the law on employer rules concerning employee use of technology and electronic communications. It should be noted that neither Boeing nor its overruling through Stericycle affect the NLRB's analysis of employees' use of email and email systems for Section 7 activity, or employers' regulation of that activity (see Caesars Entertainment: Employees Have No Right Under the NLRA to Use Company Email for Section 7 Activity).

Photography, Audio and Video Recordings, and Posting of Each

Historically, the NLRB has not held that employees have a Section 7 right to engage in workplace photography, audio or video recording, or to post photographs or recordings on the internet or social media. The NLRB had instead held that:
However, the NLRB inverted its precedent, bolstering protections for employees to engage in workplace photography and audio or video recording and to post photographs or recordings on the internet or social media. The NLRB never expressly held that employees have a Section 7 right to engage in these activities, but the analysis it applied when interpreting employers' restrictions of these activities under Lutheran Heritage effectively created those rights, subject to exceptional proof of special circumstances justifying restrictions on these activities.
The NLRB has held that:
  • Photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected by Section 7 if:
    • employees are acting in concert for their mutual aid and protection; and
    • the employer has not demonstrated an overriding interest.
    (Caesars Entm't (Rio All-Suites Hotel & Casino), 362 N.L.R.B. at 1693 (2015).)
  • The following constitute protected conduct:
    • recording images of protected picketing;
    • documenting unsafe workplace equipment or hazardous working conditions;
    • documenting and publicizing discussions about terms and conditions of employment;
    • documenting inconsistent application of employer rules; or
    • recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.
    (Whole Foods Market, Inc., 363 N.L.R.B. 800, 802-803, n.7 (2015), enforced by unpublished summary order, (2d. Cir. June 1, 2017); Rio All-Suites, 362 N.L.R.B. at 1694 (2015).)
  • Employer restrictions on photographing, recording audio or video footage, and sharing pictures, audio, or video are generally unlawful because employees would construe those prohibitions as prohibitions against employees engaging in Section 7 activity and therefore, they reasonably tend to chill employees' exercise of their Section 7 rights (Rio All-Suites, 362 N.L.R.B. at 1694).
In Boeing, the NLRB reconsidered its analysis of employment rules barring use of cameras in the workplace while overruling Lutheran Heritage in part and replacing its "reasonably construe" test for evaluating facially neutral policies with a new standard (see The Boeing Standard). In Boeing, the NLRB overruled Rio AllSuites, holding that the NLRB there improperly dismissed the employer's justification for the rule, safeguarding guest privacy and the integrity of the gaming operations, while focusing on potential Section 7 activity that employees could believe were prohibited by the rule (Boeing, 365 N.L.R.B. No. 154, slip op. at 19 n.89). With Stericycle overruling Boeing, but not applying its analysis to any policy, it is not clear to what extent employers may lawfully restrict or prohibit employees' photography, audio and video recordings, or the posting of each on social or other media. Likewise, it is not clear to what extent employers may lawfully restrict employees' possession or use of cell phones or other devices that might be used for those purposes. While it is not clear how the NLRB will analyze these rules under Stericycle, it is likely that rules concerning these employee actions that would have been unlawful under Boeing progeny likely will be unlawful under Stericycle. For example, it likely will remain unlawful for employers to prohibit employees' use of cell phones during "work hours" including in nonwork areas and during times when employees are not working (see Union Tank Car Co., 369 N.L.R.B. No. 120, slip op. at 1 (July 17, 2020), overruled by Stericycle, 373 N.L.R.B. No. 113, slip op. at 1-2, 7 (applying analysis akin to NLRB precedent on solicitation and distribution rules to deem limitations on use of cell phones in nonwork areas during non-working time an unlawful Boeing Category 3 rule); see The NLRB's Boeing Categories for Employment Rules Chart: Technology Rules, Social Media Rules, and Use of Employer's Name, Marks or Logos in Blogs or Social Media Posts Rules; The NLRB's In-Flux Analysis of Employment Policies Not Expressly Restricting Employees’ Section 7 Activities and The Current Standard Under Stericycle, Inc.)
A conservative reading of the NLRB's pre-Boeing precedents suggests that employers might lawfully restrict employee photographing, recording audio or video footage, and sharing of the same if:
In Whole Foods, the NLRB held that recording evidence to preserve it for later use in an administrative or legal proceeding constituted protected activity. Since Whole Foods, the NLRB has not:
  • Suggest the NLRA's protections of employees' recording evidence to preserve it for later use in an administrative or legal proceeding are subject to any limits.
  • Expressly overruled any part of Whole Foods, even though that decision relies on overruled analysis from Rio All-Suites and Lutheran Heritage.
(Whole Foods, 363 N.L.R.B. at 802; see Boeing, 365 N.L.R.B. No. 154, slip op. at 11-12, n.51.)
In ADT, LLC, the NLRB held that employees engaged in protected union activity when making audio-visual recordings of the employer's pre-election captive-audience meeting. The NLRB relied in part on an administrative law judge's determination that the employees made their recordings to support efforts to collect and compare information the union needed when deciding whether the action was protected under the NLRA. The NLRB held that the employees did not lose the protections of the NLRA when conducting this recording even though the employer maintained a no-recording policy forbidding recordings without explicit permission from all parties involved in states with laws prohibiting nonconsensual recording, which policy the NLRB General Counsel did not allege to be unlawful. The NLRB held that the employees did not violate applicable state law (which precluded recordings of only private conversations) and, in turn, did not violate the policy or forfeit the NLRA's protections (369 N.L.R.B. No. 23, slip op. at 1 n.3, 8 (Feb. 5, 2020)).
In AT&T Mobility, LLC, the NLRB cited ADT and acknowledged that whether an employee engages in protected activity by making a workplace recording depends on the case's facts and circumstances. In AT&T Mobility, the NLRB held that an employee was clearly policing the parties' CBA preserving evidence for a prospective grievance, and acting in his capacity as a union steward when he attended and recorded a termination meeting for a bargaining unit employee. The NLRB held, in a since-overruled component of its decision, that the employer's no-recording rule was lawful. However, the employer violated the NLRA by threatening the union steward with unspecified reprisals, if he were again to engage in the protected union recording activity in violation of the no-recording policy. By making this threat, the employer applied the no-recording policy to restrict the steward in the exercise of his Section 7 rights. (370 N.L.R.B. No. 121, slip op. at 4-8 (May 3, 2021), overruled in part on other grounds by Stericycle, 372 N.L.R.B. No. 113, slip op. at 2, n.3, 7, n.12.)