After years of stringent oversight, the National labor Relations Board (“NLRB”) is now loosening the reigns over workplace rules.
The Office of the General Counsel of the NLRB recently issued an advice memo analyzing the social media policy of Kumho Tires, a Georgia-based tire manufacturer. The General Counsel found the employer’s policy was facially lawful under the NLRB’s decision in The Boeing Company, 365 NLRB No. 154, and therefore the employer did not violate Section 8(a)(1) by firing the employee for violating the policy.
The discharged employee was active in a union organizing campaign taking place at the time and posted a photo on Facebook in a forum for union supporters. The photo was of a team leader’s bonus request form seeking a bonus for “non-union support.”
The employer determined the employee violated their social media policy that restricts employees from posting “trade secrets and private or confidential information,” and the employee was brought in and summarily discharged.
While the advice memo found the employee was engaged in concerted activity by posting the photo in the forum, it also found the conduct was not protected in this case because the employee knew the photograph was improperly obtained. A coworker had taken the bonus request form off the desk of a supervisor before sharing it with the employee to post. Therefore, because the employee’s conduct was not protected, the discharge was lawful.
This case should provide insight to employers as to how the General Counsel will interpret workplace policies moving forward under Boeing, specifically those relating to social media.