In Design Technology Group LLC dba Bettie Page Clothing, the National Labor Relations Board (NLRB) adopted the reasoning and conclusions from a decision that was vacated in light of the Supreme Court's Noel Canning decision. The NLRB again found that employees' complaints on Facebook about their supervisor were protected concerted activity.
A three-member panel of the Board (Chairman Pearce and Members Hirozawa and Schiffer):
Affirmed that the employer:
violated Section 8(a)(1) of the NLRA by maintaining a “Wage and Salary Disclosure” handbook rule; but
did not commit a separate 8(a)(1) violation by maintaining its “Confidential Information Security” handbook rule, which prohibit employee disclosure of “personnel information” to “third parties.” That issue was neither alleged nor litigated.
Observed that any rule maintained by the employer forbidding employees from disclosing wages and compensation to each other or to any third party would be prohibited by its order to remedy the "Wage and Salary Disclosure" handbook rule.
Relied on its decision in Three D, LLC (Triple Play Sports Bar and Grille), when concluding that the Facebook discussions by the employees in this case were protected concerted activity (361 N.L.R.B. slip op. 31 (Aug. 22, 2014)). For more information about this decision, see Legal Update, "Liking" a Comment on Facebook Can Be NLRA-protected Concerted Activity: NLRB.
In the original Board decision in this matter, Member Block urged that the employer be held liable for a separate unfair labor practice (ULP) for its handbook’s confidentiality provisions and ordered separately to remedy that violation, even though that issue was not alleged or litigated. Member Block's argument was not adopted, nor referenced, in the Board's new decision.
Practical Implications
In this decision, the Board, without a new analysis, relies on Triple Play. Triple Play will likely be the Board's lead social media decision as it continues to reissue its 2012-13 social media cases in light of Noel Canning.
The Board did not reference the employer's purported entrapment defense rooted in the employer's assertion that the employees lacked an honest and reasonable belief that they were complaining on Facebook for mutual aid and protection and schemed to have the employer fire them for their Facebook posts. The new Board panel thought as little, or less of the theory than the original panel.
Not surprisingly, this decision expressly declines to adopt the former decision's reliance on several 2012-13 decisions that also likely will be reissued in light of Noel Canning.
The Board's observation that its proposed broad order to remedy the wage and salary disclosure handbook provision would require the employer to rescind other arguably unlawful handbook provisions that were not the subject of a ULP charge or litigated in this proceeding appears to enlarge the scope of the compliance phase in this case. Specifically, the Board ordered that the employer rescind any rule that forbids employees from disclosing wages and compensation to each other or third parties or "in any like or related manner interfering with" employees exercising Section 7 rights under the NLRA. The observation tacitly tasks NLRB agents in the compliance phase of ULP cases to scrutinize all of the employer's employment policies even though the Board held only one provision violated Section 8(a)(1) of the NLRA.
The Board easily substituted older precedent for 2012-13 precedent regarding overbroad confidentiality provisions and wage and salary disclosure restrictions. This decision should remind employers that the Board has long held that employers generally cannot forbid employees from discussing and disclosing their wage and salary data. The prohibition was not swept away with the Noel Canning-invalidated decisions.