New NLRB Guidance: What All Employers Need to Know

Last week, the National Labor Relations Board (Board) released four Advice Memoranda addressing issues related to social media posts about customers, internal union disciplinary action, discharge for sharing a coworker’s confidential wage information, and interrogation and threats of discharge over conduct that did not seek to improve working conditions. Three of the four memoranda are summarized below, while the internal union discipline memorandum has been omitted as of limited interest to our members.

The first memorandum, Trader Joe’s (16-CA-261558) (April 28, 2021), addressed whether Trader Joe’s fired the employee for engaging in protected concerted activity after the employee criticized customers on social media over their shopping practices during the COVID-19 pandemic.

While the post was “liked” by three employees and was therefore potentially “concerted,” the Board determined that the communication was so “disloyal, reckless, or maliciously untrue” that the intent was to disparage the employer’s product or service rather than to appeal for support in a labor dispute. While the employee did not directly disparage the employer, its products, or its services, because insults were directed toward the employer’s customers, who are the “life blood of a retailer’s business,” the Board deemed the post “disloyal” and concluded the post was unprotected and the employee’s complaint should be dismissed.

East Coast Abatement (10-CA-252551) (September 16, 2020), considered an employee who found another employee’s pay stub and showed it to a coworker. The employee who found and shared the pay stub information was subsequently terminated.

The Board concluded that the terminated employee did not engage in protected concerted activity primarily because the conduct at issue did not seek to improve working conditions and thus was not for the purpose of mutual aid or protection. The Board also found the employer did not unlawfully discharge the employee for violating an overbroad work rule by engaging in either protected concerted activity or activity that is not concerted but “touches the concerns animating Section 7.”

Accordingly, the Board determined the allegations should be dismissed.

A second memorandum from East Coast Abatement (10-CA-252551), this one dated November 5, 2020, considered whether the employer violated the National Labor Relations Act when its vice president asked the employee why he had shared another employee’s personal information gleaned from his pay stub and told the employee that sharing this information was grounds for dismissal. The Board determined that the employee’s actions in sharing the information were not intended to improve the terms and conditions of employment.

Moreover, the vice president’s questioning was meant to appease the employee whose data was shared, not to discern the extent of the employee’s protected union activities. Accordingly, the Board recommended the allegations be dismissed.

Each of these three decisions favored the employer, which is welcome news. For questions on these memoranda or for anything related to Labor Relations, please email LR@employerscouncil.org.