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Clean Up on Aisle 7: Costco’s Electronic Posting Policy Chills Protected Activity

As we have explored through previous posts, the general counsel of the National Labor Relations Board, Lafe Solomon, has issued previous reports with guidance on what employers should not include in social media policies.  Consistent with this guidance, on September 7, 2012, the NLRB issued its first opinion regarding whether a policy that prohibits employees from making “damaging” statements about their employer via social media could chill Section 7 rights under the NLRA. In Costco Wholesale Club, 358 NLRB 106 (2012), a three member panel of the NLRB reviewed the following policy: 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… Continue Reading

Unfashionable Firings: Judge Orders Clothing Store to Rehire Employees Who Lost Their Jobs Based on Facebook Posts.

Can you fire an employee who post on Facebook:  “Hey dudes, it’s totally cool, tomorrow, I’m bringing aCaliforniaworkers rights book to work.  My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation?”  The employee was one of three workers who had been complaining to store management that the store should shut down an hour early so employees could avoid unsavory street people when exiting the store late at night.  After a heated exchange with store management over the subject, three employees complained about the manager on Facebook and posted about brining the “Californiaworkers rights book,” which the employee did the next day.  According to Administrative Law Judge William G. Kocol of the National Labor Relations Board, clothing retailer Bettie Page Clothing committed an unfair labor practice when it fired these three employees… Continue Reading

More Than Words of Disparagement: Does an Anti-Union Post Have to be Extreme to Go too Far?

In the union context, a significant degree of “vituperative speech” is allowed in the “heat of labor relations.”  For example, an owner of 10 Jimmy John’s sandwich shops in the Minneapolis-St Paul area was subject to an organizing campaign by the International Workers of the World where some disparaging comments were being served on the union.  During the union campaign, various managers and employees set up an anti-union Facebook page, which was open to anyone.  A National Labor Relations Board Judge recently ruled, among other things, that some conduct of management on the Facebook page constituted an unfair labor practice, interfering with an affected employee’s Section 7 rights under the National Labor Relations Act (“NLRA”).  Basically, some managers posted unflattering comments regarding a pro-union employee. The case is Miklin Enterprises, Inc. and Industrial Workers of the World (case numbers 18-ca-19707; 18-ca-19727; and 18-ca-19760) (April 20, 2012).  This is a recent… Continue Reading

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