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An administrative law judge for the National Labor Relations Board recently issued an opinion invalidating two of a healthcare provider’s policies regarding the use of email, company computers and company Internet, finding the policies violated the National Labor Relations Act. This ruling is another in a long line of NLRB decisions and “guidance” intent on broadening employee communication rights under the guise of Section 7.
It’s a Hard Life
A Pennsylvania union filed a charge against holding company UPMC (affiliated with the University of Pittsburgh Schools of the Health Sciences), and numerous subsidiary hospitals, alleging that UPMC’s policies regarding solicitation, electronic mail and messaging, and use of information technology resources violated the NLRA and “chilled” activity that is protected under Section 7 of the NLRA.
Section 7 says, “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, and shall also have the right to refrain from any or all of such activities …”
The good news is that the administrative law judge ultimately found that UPMC’s solicitation policy did not violate the NLRA. Under the standard articulated by the Board in Register-Guard, the judge found the policy was lawful because it barred all non-work solicitation, without reference to the content and without allowing the exercise of potentially discriminatory discretion by management.
However, the judge found that both the email and messaging policy and the information technology policy violated the NLRA. One problem with these policies was that they prohibited only certain personal email use in broad terms that, according to the judge, failed to provide sufficient illustrations or guidance to aid an employee in interpreting them. Specifically, the judge found that stating non-work-related email use was allowed unless the usage “may be disruptive,” is “offensive,” or is “harmful to morale” was too vague and an employee could conclude that protected discussion of unions or terms and conditions of employment was barred. This type of ambiguity resulted in a “chilling” effect on employee Section 7 discussions by failing to define what was permissible in a clear and non-discriminatory manner.
Further, citing earlier Board decisions in Costco and Karl Knauz Motors, the judge struck down provisions prohibiting communications that disparage or misrepresent the company, containing false or misleading statements, or those that “damage the Company, defame any individual or damage any person’s reputation.” The judge also struck language that permitted management to exercise any discretion to allow or forbid certain communications, as that could potentially provide an employer the discretion to discriminate against or discourage Section 7 activity.
Perhaps the most troubling part of this decision was the judge’s invalidating a provision requiring company approval before Internet transmission of “sensitive, confidential and highly confidential information.” The judge found that this language would chill employee discussion of wages, personnel matters, benefits and other terms and conditions of employment, without acknowledging the legitimate interest that companies and their customers have in protecting private information.
Hang on in There
Consistent with past NLRB decisions, this ruling highlights the NLRB’s consistent agenda to broaden employee speech under Section 7. It also suggests that prudent union and non-union employers alike should keep the following points in mind when preparing or revising social media or Internet policies:
Don’t be vague. It is clear that the NLRB is going to find unlawful any clause requiring “courtesy” or prohibiting defamatory, negative or disrespectful language because of the potential for inhibiting Section 7 activity. Thus, although it’s a good idea to prohibit discriminatory, harassing or threatening language, don’t attempt to include a “courtesy clause” in your social media or Internet policy.
Save me. At one point, the administrative law judge mentions that there was no language in UPMC’s policy indicating that Section 7 activity was protected. Often referred to as a “savings clause,” this language states something to the effect of, “Nothing in this policy will be interpreted or applied in a way that interferes with the right of employees to self organize, join, form or assist labor organizations, to bargain collectively or otherwise engage or not engage in protected concerted activity concerning working conditions.” Although such a “savings clause,” in itself, is probably not enough to salvage a bad policy, it certainly won’t hurt, and it may help.
Don’t be chillin’. Any language that the NLRB considers overly broad or ambiguous will be found unlawful based on its alleged “chilling” effect. The best approach is to provide examples and guidance for employees that specify exactly what you mean, keeping in mind the categories of statements that you may not prohibit.
I want it all. This decision also makes clear that the NLRB will recognize an employer’s property right to limit use of its resources and equipment, as long as that limitation is non-discriminatory. Thus, prohibitions of all non-work use of company technology or resources is fine; however, any language that could potentially allow viewpoint discrimination by permitting management to grant permission for certain activity within a given category is asking for trouble.
Friends will be friends. Additionally, you can’t prevent employees from speaking about the company or mentioning the name of their employer online, but you can prevent them from speaking on behalf of the company.
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