Be Careful What you Wish for!

Ladies and Gentlemen:  (drum roll please)  The NLRB has finally issued a social media decision.  No more relying on General Counsel memos or worrying about whether or not the sample policy that Acting GC Laffe Solomon said was valid is still worth looking at. (You may recall that the NLRBB Inspector General alleged Solomon may have violated ethical rules by participating in the Wal-Mart social media case while he held a substantial financial interest in the company.)  No more trying to parse through pages and pages of nonsense.

Finally, some clarity.  Yes, on September 7, in Costco Wholesale Corporation and UFCW Local 371, 358 NLRB No. 106 (2012) we finally got some clear and well-reasoned direction from the Board (can you hear the sarcasm as I type this?).

At least that was what I hoping for. But turns out that  the decision is unclear and not what we were looking for at all.

In fact, the decision is, well, it’s just ridiculous.  That’s right, I said it: Ridiculous.

The decision deals with a bunch of Costco’s policies.  The one we are interested in, the electronic communication policy, says the following:

Any communication 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.

Seems okay to me.  In fact, it seemed okay to the administrative law judge that initially decided the case, too.  He said this policy was valid because “employees would not reasonably construe this rule as regulating and thereby inhibiting, Section 7 conduct.”  Well, that should take care of that, right?

Oh, wrong, so very wrong. The Board said the ALJ was wrong. The Board said he relied on the wrong cases. The Board said the cases he relied on were distinguishable because, “most involved rules addressing conduct that is reasonably associated with actions that fall outside the Act’s protection, such as conduct that is malicious, abusive, or unlawful.”  But not this policy apparently.

Here is what the Board said:  “Contrary to the judge, we find employees would reasonably construe this rule as one that prohibits Section 7 activity.”  Really, which employees are those?  But let’s not jump to conclusions. Let’s see why the Board thinks this.  Here is why “by its terms, the broad prohibition against making statements that “damage the Company, defame any individual or damage any person’s reputation” clearly encompasses concerted communications protesting the Respondent’s treatment of its employees.”

What????.  Did the NLRB really just say that Section 7 protects defamation?  Defaming someone is a tort. You can get sued for it. You can be required to pay damages for it. It is malicious. It is abusive. And it is unlawful.  See the problem here?

But that is not the end of this little fairy tale, nightmare, whatever.

The Board then had the . . . nerve (that’s not what I started to say but we will go with that so my editor does not fall out of her chair) to say, “In contrast, the Respondent’s rule does not present accompanying language that would tend to restrict its application.  It therefore allows employees to reasonably assume that it pertains to — among other things — certain protected concerted actives such as communications that are critical of the Respondent’s treatment of its employees.”

Did I miss something here or is the Board suggesting that all of this may have been okay if only Costco had included a savings clause.  You know what a savings clause is right, some simple like “we won’t enforce this in a way that interferes with your Section 7 rights.”  Simple enough, except.  I’m sure I saw something in one or two of those GC Memos that said savings clauses were not enough.  Oh yea, that’s right.  Didn’t the GC say it is not enough to include a “savings clause” in the social media policy that attempts to cure ambiguities and ensure employees understand that the policy does not apply to Section 7 activity?

Instead, he found in several instances that employees will not understand the savings clause to mean that protected Section 7 activities are permitted.  In fact, take a look at  page 8 of the Jan. 24 GC Memo and pages 9,12 and 14 of the  May 30 GC Memo. On second thought, don’t look. It might make your head explode.

Can you tell I’m a bit upset?  Let’s hope Costco appeals this thing and a Court finally steps in to rein this agency back in.