Protected Concerted What? The National Labor Relations Board and Social Media

Protected Concerted What? The National Labor Relations Board and Social Media

The National Labor Relations Board (NLRB) is at it again, by recently releasing its first two rulings on employer social media policies.

In 2010 the NLRB’s administrative law judges issued several findings that employers’ social media policies were violating their employees’ right to engage in “protected concerted activity” as protected by the National Labor Relations Act of 1935. The Board has issued three (3) reports providing guidance on social media policies. The first report, Acting General Counsel Concerning Social Media Policies, was released in August 2011 followed by another memorandum (OM 12-31) in January 2012. The Acting General Counsel issued a third report in May 2012 which includes a sample policy. The two rulings provide official guidance and precedent in how organizations should write their social media policies.

1.  Costco Wholesale Corporation (34-CA-12421; 358 NLRB No. 106)

This case did not involve an employee’s use of a social network but issues related to Costco’s employees’ unionizing activities. But NLRB’s ruling in the Costco case focused on Costco’s Electronic Posting Policy within its Employee Handbook that applied to social media sites. The policy stated:

Any communications transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. Employees should be aware that statements posted electronically (such as [to] online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.

The Board ruled that the policy (similar to a social media policy) was overly broad in prohibiting statements that “damage the company.” Some such statements would encompass concerted communications protesting the company’s treatment of employees. NLRB said employees “would reasonably conclude that the rule requires them to refrain from engaging in certain protected communication. . . .” The policy’s weakness was that it did not contain any language restricting the policy’s application to communications protected by Section 7 of the NLRA. Employees could assume that the policy applied to communications that are critical of the company’s treatment of its employees which is protected concerted activity.

Bottom line – Any social media policy should include language that allows employees to have protected communications such as discussion of workplace terms and conditions. Broad policy language is acceptable if it provides specific examples of what is and is not permissible.

2. Karl Knauz Motors, Inc. (13-CA-046452, 358 NLRB No. 164)

In this case, an employee made two Facebook posts on the same day and one of them ended with his termination. According to a Client Alert by Pillsbury Winthrop Shaw Pittman LLP, the dealership was holding an event to introduce a new BMW model. At a meeting prior to the event, the employee and one of his co-workers disagreed with the dealership’s decision to have a hot dog cart at the event rather than more upscale catering. The employee on the day of the event took pictures of the hot dog cart and posted the photos on his Facebook page with the post “I was happy to see that Knauz went “All Out” for the most important launch of a new BMW in years . . . but to top it all off . . . the Hot Dog Cart. Where our clients could attain an overcooked Weiner and a stale bunn [sic].”

The same employee took pictures of an accident at an adjacent Land Rover Dealership (also owned by Knauz Motors) where a customer’s 13-year-old son drove a Land Rover into a pond. The employee posted the pictures on his Facebook page with the caption: “This is your car. This is your car on drugs.” After the dealership learned of the employee’s Facebook posting, he was terminated.

The NLRB Board ruled that the termination for the posting of the pictures of the accident was not an infringement of the employee’s rights under the NLRA. The accident postings were neither protected nor concerted activity since the employee did not discuss the postings with any other employees. Also, the accident posting had no connection to any employee’s terms and conditions of employment.

While reviewing the part of the case pertaining to the sales event, the NLRB determined that the employee’s postings were protected concerted activity. The employee had discussed his concerns about the sales event with other employees and the event could have an effect upon his compensation.

The Board found in a 2-1 vote that the dealership’s “Courtesy Rule” violated Section 7 of the NLRA. The policy stated:

Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use of profanity or any other language which injures the image or reputation of the Dealership.

The Board believed that employees would responsibly construe the broad prohibition against disrespectful conduct and language that injures the dealership as encompassing Section 7 activity (employees’ right to make statement objecting to their working conditions).

Bottom Line – Your social media policy cannot prohibit employees from making damaging or disrespectful statements about their employer. You need to include an indication that protected communications and activities are excluded from the policy.

The rulings and reports show a very fine line in describing behaviors that acceptable or inappropriate within a social media policy. All non-supervisory employees have the right to discuss and take action for their mutual aid or protection regarding the terms and conditions of their employment. This right exists whether or not the workplace has a union. Therefore it applies to associations and nonprofits. Review your policy now.



First NLRB Decisions on Social Media Give Employers Cause to Update Policies, Practices, Pillsbury Client Alert, October 10, 2012

NLRB Decisions Continue to Proscribe Social Media and Other Policies If They Could Arguable Be Construed to Limit Protected Concerted Activity, Duane Morris LLP, October 19, 2012

Latest Guidance for Developing a Social Media Policy, Squire Sanders, October 12, 2012


National Labor Relations Act of 1935

(Wagner Act)

According to the National Labor Relations Board

Congress enacted the National Labor Relations Act (“NLRA”) in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.

The NLRA is a federal law that protects employees in the private sector (whether or not part of a unionized workforce) to engage in concerted activity without the fear of employer retaliation. Section 7 [§ 157.], Rights of Employees, defines “concerted activity” as

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, . . .

In other words “concerted activity” is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.

Section 8 of the Act, [Unfair Labor Practices Section 8. [§ 158. (a)], defines unfair labor practices by employers. Essentially employers are prohibited from interfering with, restraining, or coercing employees who are exercising their Section 7 rights.

The NLRA establishes the National Labor Relations Board (NLRB) which is empowered “to prevent any person from engaging in any unfair labor practice (listed in section 8 [section 158 of this title]) affecting commerce. Since 2010 the NLRB has been active in reviewing employers’ social media policies to ensure that the policies do not infringe upon employees’ rights for protected concerted activity under Section 7 of the NLRA.


(photo credit)

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