NLRB: Termination OK, But Handbook Provisions Not

Last week, the National Labor Relations Board ordered a Georgia auto business to rescind portions of its handbook that the Board determined violated Section 7 of the National Labor Relations Act after the employer terminated an employee for insubordination. Georgia Auto Pawn (NLRB 2015). However, the employee’s termination was lawful, the Board found, as she was unable to demonstrate the termination was for engaging in protected concerted activity.

The administrative law judge (ALJ) identified four policies that violated Section 7:

1. A communication policy that prohibited “creating general discord,” which might prevent “employees from [lawfully] complaining about working conditions or candidly expressing dissatisfaction … ”;

2. An overbroad solicitation policy that illegally prohibited solicitation during non-work time and in non-work areas;

3. An email policy that stated email could only be used for business purposes; and

4. A social media policy that could be read as prohibiting any negative comments about the company, and was thus overbroad.

Regarding email, the ALJ wrote: “[E]mployee use of email for statutorily protected communications on non-working time must … be permitted by employers who have chosen to give employees access to their email systems. We therefore overrule the Board’s divided 2007 decision in Register Guard to the extent it holds that employees can have no statutory right to use their employer’s email systems for Section 7 purposes.”

Members concerned about the NLRA are encouraged to contact MSEC with their questions.