On July 19, 2018, in AdvancePierre Foods, Inc., the panel (Board) heading the NLRB's judicial functions held that the employer engaged in a series of unfair labor practices (ULP) arising out of a union organizing campaign. Among other things, the Board concluded that a supervisor improperly surveilled employees' online activity and searched through suspected union sympathizers' personal Facebook profiles to find information about their union activity. Relying on traditional surveillance precedent, the Board found that this deliberate, intentional internet surveillance constituted a ULP in violation of Section 8(a)(1) of the NLRA. (366 N.L.R.B. No. 133 (July 19, 2018).)

AdvancePierre Foods, Inc. (AP) manufactures processed foods for restaurant chains, retail businesses, and convenience stores. During the spring of 2015, the United Food and Commercial Workers Union Local 75 began meeting with AP employees to discuss unionization of the workforce at AP's Cincinnati, Ohio facility. On June 14, Diana Concepcion, an AP line coordinator, spoke about the union campaign with another AP employee on a local Spanish-language radio station. When notified of the interview two days later, AP employee relations manager Mandy Ramirez visited the radio station's website to find an archived recording of the show, but was unsuccessful. From the website, she accessed the station's Facebook page and located a post about the union's AP campaign, which had one "like" by an individual identified as "Yazzmin Trujillo."

Ramirez conducted an extensive review of Trujillo's personal Facebook page and related profiles, and ultimately concluded that the "Yazzmin Trujillo" profile belonged to the employee who Ramirez knew as Diana Concepcion. Based on this investigation, Ramirez became suspicious that Concepcion had provided false documentation to AP when she began her employment, and Ramirez relayed this information to upper management. Subsequently, Ramirez informed Concepcion that AP required additional documentation to verify her identity. When Concepcion failed to provide satisfactory documentation within AP's stated timeframe, Concepcion was suspended without pay.

Counsel for the NLRB's General Counsel issued a complaint consolidating various ULP allegations against AP for actions taken in response to the union's organizing campaign, including the online surveillance of Concepcion. An NLRB administrative law judge (ALJ) determined that AP had violated Section 8(a)(1) of the NLRA by, among other things:

AP excepted to the ALJ's decision.

The Board adopted the conclusions of the ALJ, holding that Ramirez's Facebook searches constituted unlawful surveillance in violation of Section 8(a)(1) of the NLRA because she:

Affirming the application of traditional surveillance precedent to Ramirez's online investigative efforts, the Board upheld the ALJ's:

The Board concluded further that AP had engaged in unlawfully motivated retaliation for union activity in violation of Section 8(a)(1) by:

Specifically, the Board applied the Wright Line test of evaluating potential dual motives for an employer's adverse employment action and concluded that:

The Board also held that AP unlawfully:

Finally, the Board majority (Members Pearce and McFerran) reversed the ALJ's conclusion and held that AP committed a ULP by soliciting employees to revoke their union authorization cards (In re Mohawk Indus., 334 N.L.R.B. 1170, 1171 (2001)).

The Board's decision in AdvancePierre Foods signals an extension of its historical precedent governing the physical observation and surveillance of employees' protected activity to employees' online presence, including social media accounts like Facebook. Accordingly, employers should exercise caution when deciding to review an employee's social media profiles, even if they are open to the public, and avoid the temptation to search the internet for information about their employees' protected union activities, as the Board is likely to find that this conduct constitutes unlawful surveillance in violation of the NLRA.

On July 24, 2020, the DC Circuit denied the employer's petition for review of the Board's holding that the employer unlawfully encouraged its employees to withdraw their union authorization cards and that a notice reading was an appropriate remedy for the employer's ULPs (Advancepierre Foods, Inc. v. NLRB, (July 24, 2020)).