Social Media Policy Prohibiting Use of Company Logo, Sharing Videos or Photos of Workplace is Unlawful: NLRB General Counsel's Office | Practical Law

Social Media Policy Prohibiting Use of Company Logo, Sharing Videos or Photos of Workplace is Unlawful: NLRB General Counsel's Office | Practical Law

The National Labor Relations Board (NLRB) General Counsel's Office recently released an advice memorandum in Giant Food LLC, providing guidance on whether language in the employer's social media policy could chill the exercise of Section 7 rights in violation of the National Labor Relations Act (NLRA) and whether the employer unlawfully implemented the social media policy without bargaining with the unions representing some of its employees.

Social Media Policy Prohibiting Use of Company Logo, Sharing Videos or Photos of Workplace is Unlawful: NLRB General Counsel's Office

by Practical Law Labor & Employment
Published on 23 Jul 2013 • USA (National/Federal)
The National Labor Relations Board (NLRB) General Counsel's Office recently released an advice memorandum in Giant Food LLC, providing guidance on whether language in the employer's social media policy could chill the exercise of Section 7 rights in violation of the National Labor Relations Act (NLRA) and whether the employer unlawfully implemented the social media policy without bargaining with the unions representing some of its employees.
On July 18, 2013, the NLRB's General Counsel's Office, which heads the NLRB's prosecutorial functions, issued an advice memorandum regarding the social media policy of Giant Food LLC. The Division of Advice found that:
  • Portions of the social media policy were unlawfully overbroad.
  • The employer unlawfully implemented the social media policy as to two bargaining units without collective bargaining.
The Division of Advice found that the employer lawfully implemented the policy as to a third bargaining unit because its union waived bargaining about the policy.
In particular, the Division of Advice scrutinized the following social media policy provisions:
  • You have an obligation to protect confidential, non-public information to which you have access in the course of your work. Do not disclose, either externally or to any unauthorized Associate any confidential information about the Company or any related companies including Ahold USA, or about other Associates, customers, suppliers or business partners. If you have questions about what is confidential, ask your manager.
  • Do not use any Company logo, trademark, or graphics, which are proprietary to the Company, or photographs or video of the Company’s premises, processes, operations, or products, which includes confidential information owned by the Company, unless you have received the Company’s prior written approval.
  • Do not defame or otherwise discredit the Company’s products or services.
  • Speak up if you believe that anyone is violating these guidelines or misusing a Company-sponsored site. Please submit such reports to your manager and provide as much specific information as possible.
  • Please note that the Company will not construe or apply these guidelines in a manner that improperly interferes with or limits employees’ rights under any state or federal laws, including the National Labor Relations Act.
The Division of Advice:
  • Found unlawful the policy's prohibitions on:
    • posting information that could be deemed "confidential" or "non-public", because it did not define or limit the scope of that information, or provide examples of what was confidential. Employees would reasonably construe it to include information about terms and conditions of employment;
    • using the employer's logo or trademark, because employees would reasonably construe it to prohibit non-commercial use of the logo or trademark in leaflets, picket signs and other Section 7 communications; and
    • photographing or videotaping the employer's workplace, because the rule would reasonably be interpreted to prevent employees from sharing pictures or video of their engaging in protected concerted activities, such as picketing.
  • Found the employer's savings clause is insufficient to cure the unlawful provisions because employees could not discern from the disclaimer which activities are protected from discipline.
  • Found lawful the policy's provisions requiring employees:
    • not to defame or discredit the employer's products or services, because that rule only prohibited conduct not protected under Section 7; and
    • to report violations, because it does not, assuming the current unlawful policy provisions are removed, restrict lawful communication.
  • Deemed social media guidelines mandatory subjects of bargaining, akin to other work rules that could be the grounds for discipline.
  • Concluded that the management rights clause in the employer's CBAs did not expressly give it authority to unilaterally implement its social media policy.
  • Condemned the employer for announcing its plan to implement the social media policy without giving two of the unions adequate notice or an opportunity to bargain.
  • Found that the employer permissibly implemented the policy as to one union's bargaining unit because:
    • it gave the union adequate notice of its intentions to implement the policy; and
    • the union waived its right to bargain about the policy by not requesting bargaining for the two months between the employer's notice and implementation of the policy.
Although this advice memorandum is not binding precedent of the panel (Board) heading the judicial functions of the NLRB, the memorandum instructs that the NLRB's General Counsel will prosecute ULP charges where:
  • Employer's social media policies fail to:
    • define their scope and limits; and
    • disclaim their application to Section 7 activity. A "savings clause" must specifically differentiate lawful activity from unlawful activity.
  • Employers implement and apply social media policies to unionized workers without giving their union adequate notice and opportunities to bargain about the policies.
NLRB documents: